IN THE CASE OF: BOARD DATE: 17 November 2015 DOCKET NUMBER: AR20150001888 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his bad conduct discharge (BCD) in the form of an upgrade in his characterization of service from under other than honorable conditions to under honorable conditions (general). 2. The applicant states, in effect: * when he was court-martialed, the judge advocate in charge did not reduce his rank/grade; however, a private first class (PFC) at Fort Riley lowered it to private (PVT)/E-1 * the judge advocate said that after two years, he would be eligible for an upgrade to a general discharge * his problems stemmed from returning from Vietnam as an alcoholic; he got drunk with two others and went on a drinking binge * he received the Bronze Star Medal and the Army Commendation Medal in Vietnam, where he served honorably * during his discharge proceedings, a colonel told him he would be eligible for an upgrade after two years to a general discharge * while in Vietnam, he saw an Army Chaplain for his drinking problem * after leaving the Army, he spent almost 20 years inside a bottle, but has since been sober * he was sent to prison in Texas for multiple DWIs; after that, he vowed never to drink again * the military contributed to his drinking problem and he deserves better treatment than to finish out his life with a BCD 3. The applicant provides no documentary evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 17 August 1970. He served in military occupational specialty 67B (O-1/U-6 Airplane Repairman). The highest rank/grade he attained was specialist four (SPC)/E-4. 3. He served in the Republic of Vietnam from 8 January 1971 through 29 October 1971, where he was awarded the: * Bronze Star Medal * Army Commendation Medal * National Defense Service Medal * Vietnam Service Medal with two bronze service stars * Republic of Vietnam Campaign Medal with Device (1960) 4. Following the completion of his service in the Republic of Vietnam, he was assigned to Fort Hood, Texas. 5. Special Court-Martial Order Number 25, issued by Headquarters, 1st Cavalry Division, Fort Hood, Texas on 22 February 1973, shows he was tried and found guilty of the following charges: a. Charge 1 - violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent from his unit without authority (AWOL) from on or about 7 August 1972 until on or about 7 August 1972; and from on or about 6 September 1972 until on or about 26 October 1972. b. Charge 2 - violating Article 121 of the UCMJ by stealing one .22 caliber automatic pistol, of a value of about $90.00, the property of Sergeant (SGT) C.B., on or about 5 August 1972. c. An additional Charge - violating Article 86 of the UCMJ by being AWOL from his unit from on or about 27 November 1972 until on or about 29 November 1972. d. The court sentenced him to be discharged from the service with a BCD, to be confined at hard labor for a period of three months, and to forfeit $175.00 pay per month for a period of three months. The sentence was adjudged 8 January 1973. 6. The convening authority approved his sentence and to be duly executed, but the execution of that portion thereof adjudging a BCD was suspended for six months, at which time, unless the suspension is sooner vacated, the unexecuted portion of the sentence shall be remitted without further action. Additionally, he ordered the record of trial forwarded The Judge Advocate General of the Army for review by a Court of Military Review. 7. The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence on 12 April 1973, as provided for a BCD (suspended for six months), confinement at hard labor for 3 months, forfeiture of $175.00 pay per month for 3 months. 8. The U.S. Court of Military Appeals denied his petition for grant of review on 30 April 1973. 9. He accepted nonjudicial punishment on 1 May 1973 under the provisions of Article 15 of the UCMJ for willfully disobeying the lawful command of a commissioned officer by going AWOL from on or about 29 April 1973 until on or about 30 April 1973. At the time of this action, he was in the rank/grade of PVT/E-1. 10. Special Court-Martial Order Number 1706, issued by the U.S. Army Retraining Brigade, Fort Riley, Kansas on 18 July 1973, shows that the convening authority ordered so much of the order published in Special Court-Martial Order Number 25, dated 22 February 1973, as modified by Special Court-Martial Order Number 800, dated 9 April 1973, as suspends execution of the sentence to BCD, vacated pursuant to Article 72. Article 71(c) having been complied with, the sentence to BCD was to be duly executed. 11. Article 71(c) of the UCMJ stipulates that if a sentence extends to death, dismissal, or dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived and an appeal is not withdrawn, that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is final judgment as to the legality of the proceedings. A judgement as to legality of the proceedings is final in such cases when review is completed by a Court of Military Review. 12. He was discharged on 25 July 1973. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations) as a result of court-martial, with an under other than honorable conditions discharge. He was issued a DD Form 259-A (Bad Conduct Discharge Certificate). 13. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. After careful review of his application, military records, and all other available evidence, the ADRB determined on 18 January 1979 that he was properly and equitably discharged and denied his request. 14. There is no evidence in his record nor does he provide any that establishes a medical diagnosis of alcohol dependency. There is no evidence indicating that he sought assistance from his chain of command or any other Army agency to cope with alcohol dependency. 15. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel: a. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. b. Chapter 11 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable. 16. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 17. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. DISCUSSION AND CONCLUSIONS: 1. The applicant received a BCD pursuant to an approved sentence of a special court-martial, which was warranted by the gravity of the offenses charged at the time. Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 2. The convening authority provided some leniency in suspending his BCD for six months, unless the suspension was sooner vacated. Unfortunately, the applicant received NJP on 1 May 1973 (a little over 2 months later) for disobeying a lawful command and went absent without authority. This action caused the convening authority to vacate the suspension and after the required appellate review execute the BCD portion of the sentence. 3. The applicant contends that his experiences from Vietnam caused him to come back home an alcoholic. However, there is no evidence that definitively diagnoses him as alcohol dependent or that alcohol abuse was the causative factor in his misconduct. He further contends he was not reduced to private/E-1; however, since he accepted NJP on 1 May 1973, which lists his grade of E-1, government regularity is presumed that he was at some point properly reduced to that rank/grade. 4. His record of service during the period in question did not meet the standards of acceptable conduct and performance of duty for Army personnel. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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. _____________X__________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20140021135 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001888 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1