RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 October 2005 DOCKET NUMBER: AR20050000864 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Ms. Judy L. Blanchard Analyst The following members, a quorum, were present: Mr. Mark D. Manning Chairperson Mr. Larry C. Bergquist Member Ms. Carmen Duncan Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, an upgrade of his Bad Conduct Discharge (BCD). 2. The applicant states, in effect, that he was too young to know better and that he had family problems. His wife was sick and later died and he needed help. He was left with two small children. He asked for help and he got none. He also worked for over 30 years to get this problem out of his mind. He states that he cannot live this down and he has worked very hard to correct this problem. He further states, that he had 2 years of satisfactory duty with the 82nd Airborne Division at Fort Bragg, North Carolina. He tried to get help from the Red Cross, they called his unit, but they did not help. At his court-martial, he told his unit that he needed help and he did not get any help. He had several other confrontations that occurred but he still did not get any help. He went back several times to Fort Ord, California to ask for help but to no avail. After his court-martial, he was sentenced to 6 months in confinement and a bad conduct discharge. He felt very bad about it, but he also had to help his family. 3. The applicant provides a copy of his military records, a copy of his DD Form 214, a letter from the Presidential Clemency Board, a copy of his General Educational Development (GED), 30 copies of Certificates of Accomplishments, Commendations and Training Awards from his job and a self-authored letter. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice that occurred on 20 October 1969. The application submitted in this case was received on 13 January 2005. 2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant’s record shows that he enlisted in the Regular Army and entered active duty on 30 August 1963. He was trained in, awarded and served in military occupational specialty (MOS) 11C (Infantryman Indirect Fire Crew Member) and the highest rank he attained while serving on active duty was private first class (PFC) pay grade E-3. 4. On 23 November 1965, the applicant was convicted by a Special Court-Martial of being absent without leave (AWOL) for the period of 1 September 1965 through 11 October 1965. He was sentenced to confinement at hard labor for two months (suspended for two months), a forfeiture of $83.00 pay for three months, and a reduction to the rank of private/pay grade E-1. 5. On 14 January 1966, the applicant accepted nonjudicial punishment for disobeying a lawful order and for being disrespectful to a Noncommissioned Officer. His imposed punishment was a forfeiture of $19.00 pay and 7 days of restriction. 6. The applicant’s DA Form 20 (Enlisted Qualification Record) shows that the applicant went AWOL on many different occasions. However, it is difficult to decipher AWOL time from confinement time because of the overlapping of the AWOL and confinement time periods. 7. On 8 August 1969, the applicant was convicted at a SPCM convened by United States Army Training Center, Infantry & Fort Ord, California, of two specifications of being AWOL from 16 March 1968 through 9 April 1968 and from 6 May 1968 through 2 July 1969. He was sentenced to a BCD, confinement at hard labor for a period of three months and a reduction to the rank of private/pay grade E-1. The sentence was approved by the convening authority on 28 August 1969 and the record of trial was forwarded to The Judge Advocate General of the Army for review by the army court of military review. On 29 September 1969, the United States Army Court of Military Review affirmed the sentence and the finding of guilty and ordered it duly executed. The record indicates that the applicant waived his rights to a review from the United States Court of Military Appeals. 8. On 20 October 1969, the applicant underwent a medical examination and was found fit for retention. 9. The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 20 October 1969 under the provisions of Army regulation 635-204, as a result of a court-martial with a BCD. He had completed 2 years, 10 months and 24 days of creditable active military service. 10. Army Regulation 635-204 set forth the basic authority for the separation of enlisted personnel. In effect at the time, it provided the policies and procedures for separating members with a dishonorable or bad conduct discharge. It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that, the appellate review must be completed and the affirmed sentence ordered duly executed. 11. On 2 February 1976, the applicant was issued a correction of his DD Form 214, which shows he received a Clemency Discharge in recognition of satisfactory completion of alternate service pursuant to PP# 4313. 12. In PP # 4313, dated 16 September 1974, the President announced a clemency program designed to provide deserters an opportunity to work their way back into American society. This proclamation pertained to all individuals who were carried administratively as deserters if their last period of AWOL was between 4 August 1964 and 28 March 1973. Under this program, eligible enlisted deserters were offered the opportunity to request an undesirable discharge for the good of the service if they agreed to perform alternate service under the supervision of the Selective Service System. Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate. 13. Clemency Discharges issued pursuant to PP# 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the Department of Veterans Affairs. The Army Discharge Review Board adopted the policy that a Clemency Discharge would be considered by a board in its deliberations but that the discharge per se did not automatically require relief be granted. 14. Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his discharge should be upgrade because he was too young and that he had family problems were carefully considered and found to be insufficient evidence in supporting his request. The applicant’s record shows that he was 21 years of age at the time of the offenses. There is no evidence that indicates that he was any less mature than any other Soldier of the same age who successfully completed military service. The applicant contends that family problems led to his BCD. There is no evidence nor has the applicant provided any evidence to show that he asked for help at anytime before deciding to go AWOL. Therefore, given the circumstances in this case and his overall undistinguished record of service, there is insufficient evidence to support his claim. 2. The applicant’s contentions regarding his good post service conduct and achievements were carefully considered. The applicant’s good post service conduct is commendable, but is not so meritorious as to warrant an upgrade of his discharge. 3. The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations and his rights were protected throughout the court-martial process. There is no evidence in the applicant’s record nor has he presented any evidence to warrant relief beyond that already provided by receiving a clemency discharge. 4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 5. Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 October 1969. Therefore, the time for him to file a request for correction of any error or injustice expired on 19 October 1972. However, he failed to file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __MDM _ __LCB__ ___CD _ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. _____Mark D. Manning _____ CHAIRPERSON INDEX CASE ID AR20050000864 SUFFIX RECON YYYYMMDD DATE BOARDED 20051004 TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (NC, GRANT , DENY, GRANT PLUS) REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.