IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011138 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011138 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011138 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 to an honorable discharge. 2. The applicant states: a. In 1968, he received his draft notice the day he graduated from high school, and while it was not good news for him, he was committed to doing his duty to the best of his ability. Throughout basic training at Fort Ord, CA, and into his tour in Vietnam, he performed honorably doing all that was asked of him and more. In Vietnam, he was initially assigned to drive a long-haul truck delivering bakery goods to remote locations. As his tour became short, he was switched to making deliveries in a smaller truck in the local area. b. When a noncommissioned officer (NCO) position became vacant, he filled the position supervising four E-4s even though he was an E-4 himself. Both his commander and sergeant major (SGM) testified at his hearing that he was one of their best troops and they would be glad to have him serve in their units even after he was convicted. He was proud of the service he provided his country. c. When he was driving the local truck, he loaded it each morning at the bakery. There was a Vietnamese national his age named NPH, who worked the night shift, helped him load the truck, and they became friends. As NPH was heading home when he was heading out to make deliveries, he gave NPH a ride home. NPH lived with an older man and he got to know him too. Each day old bread was thrown into the dumpster and NPH asked if it would be okay for him to take it to his people. He felt sorry for the Vietnamese people and did not see a problem with giving them bread that was going to be thrown out; therefore, he allowed NPH to put some bags in his truck. d. One day as they were leaving base, NPH told him there were some electronics in the bags that he had taken from the storage lockers. He (the applicant) believed defective items that did not have much value were stored in the lockers prior to being dumped in the bay. Although he was uncomfortable with the situation, he did not want to get NPH in trouble so he went ahead and took him home. Later, NPH gave him some money and a gold chain which he accepted as gifts from a friend. NPH then asked if he could bring more stuff and pestered him until he agreed. The items were stashed inside the old bread sacks so he could not see what was inside them. e. He found out later that NPH, apparently working with others, had broken through the wall at the back of the bakery and gained access to the storeroom in the Base Exchange (BX) and stole items worth over $20,000. He thought he was looking the other way while NPH took some low-level items like old bread. He would not have gone along had he known it was a high-dollar theft operation. f. All of this occurred shortly before he was due to leave Vietnam. When the U.S. Army Criminal Investigation Command (CID) agent approached him, the agent told him that if he pled guilty he could be out of the country in a short time, but if it went to trial then it would be much longer. He wanted to go home and he believed the CID agent when he told him that a bad conduct discharge was not a big deal. He knew what he had done was wrong, and he wanted to go home, so he pled guilty. At the hearing, his defense counsel gave him a paper to read from and he did so believing it was the best thing to do. g. He is now 65 years old and accepts that his time on earth is growing short. With the exception of this one incident, he is proud of his service in Vietnam. He was young and made bad decisions. He should have been aware that NPH was not really his friend and should not have compromised his values. He should not have been so focused on going home. He should not have waived his right to tell his side of the story. He accepts that he should be punished for what he did and he accepts his conviction, but he requests that he be awarded an honorable discharge in recognition of his otherwise honorable service. 3. The applicant provides: * his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DA AGO Form 60 (Bad Conduct Discharge Certificate) * eight letters to the applicant's mother from her Representative in Congress, dated between 29 July 1970 and 29 October 1971 * eight letters to the Representative in Congress from military officials, dated between 11 September 1970 and 8 April 1971 * three courts-martial orders, dated between 1 and 25 October 1970 * Record of Trial, dated 25 October 1970 * a self-authored letter to an investigating officer (IO), undated * two letters from his appellate defense counsel, dated 31 March and 28 April 1971 * a letter to the IO from his appellate defense counsel, dated 12 April 1971 * a letter to his appellate defense counsel from the IO, dated 19 April 1971 * orders, dated 12 November 1971 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 was inducted into the Army of the United States on 8 January 1969 when he was 19 years, 8 months, and 15 days old. He held military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist). 3. On 7 June 1969, he was assigned to the U.S. Army Element Vietnam Regional Exchange (PACEX), Vietnam. His date eligible for return from overseas (DEROS) was 6 June 1970. He was promoted to the rank/grade of specialist four (SP4)/E-4 on 20 January 1970. 4. On 21 March 1970, he submitted a request for a 65 day extension of his tour in Vietnam. The request was approved and his DEROS was adjusted to 10 August 1970. 5. On 3 July 1970, a DA Form 268 (Report for Suspension of Favorable Personnel Actions (Flag)) was placed against him as he was under investigation by the CID for alleged involvement in theft of merchandise from the PACEX. 6. In October 1970, court-martial charges were preferred against him for one specification each of conspiring with NPH to commit larceny of: * cameras, televisions, and electronic equipment of a value of $4,389.95 on or about 23 May 1970 * jewelry and watches of a value of $19,227.90 on or about 23 June 1970 (for a total value of $23,617.85) 7. An interim DA Form 268, dated 14 October 1970, shows the applicant's request for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 - for the good of the service in lieu of trial by court-martial was denied. 8. On 18 October 1970, a special court-martial convened in Vietnam. The applicant provides the Record of Trial wherein it shows, in part: a. The applicant entered a plea of guilty to both of the charges and specifications. The judge stated that he wanted to explain the meaning and effect of his proposed plea of guilty and to conduct an inquiry so that he (the judge) could determine whether he fully understood the meaning of his plea. The judge stated, in part, a plea of guilty was equivalent to a conviction and was the strongest form of proof known to the law. On his plea alone, without receiving any evidence, the court could find him guilty of the offenses to which he pled guilty. His plea would not be accepted unless he realized that by his plea he admitted every act or omission and every element to which he pled guilty, and that he was pleading guilty because he really was guilty. b. Under oath, the applicant testified that he fully knew what he was pleading guilty to, was guilty of both charges, and had not been coerced into pleading guilty. As to the first specification, he recounted that he initially started by letting NPH take excess bread and later agreed to haul some stuff that NPH told him was damaged merchandise. As he was going out the gate, he was told it was electronics in the bags and NPH then explained to him what was going on. c. As to the second specification, the applicant testified that NPH gave him $200 for hauling off stuff and a gold chain with a cross on it that was kind of a gift. NPH approached him the Saturday before the last specification date, asked him if he would haul off more merchandise, and he replied that he did not want to. NPH said he would pay him the same as before so he finally agreed to it. They loaded up the stuff and he dropped NPH off at the same place as before. On a Wednesday when he was getting ready to go on his route, two CID agents stopped his truck, asked if he knew anything about the main PACEX being robbed, and he went with them. They questioned him about the jewelry and watches taken from the back of the PACEX warehouse and put in containers. Right then he knew what was going on and told the CID agents that he hauled some stuff for the Vietnamese and he must be guilty. d. The judge accepted his plea of guilty. e. Major (MAJ) HEC, Commander, PACEX, testified that he had known the applicant for 8 months and thought he was one of his best Soldiers out of 130. Due to the seriousness of the offenses the applicant pled guilty to, he would not want him assigned to his organization but would be more than happy to have him working for him in any other organization. f. SGM WB, SGM, PACEX, testified that he had known the applicant since April 1970 and was impressed that he was one of the most outstanding SP4s at that time. He answered his questions in an outstanding manner and respectfully, knew his job, and had high morale. Even though he pled guilty to and had been convicted of the charges, he would be willing to have the applicant work for him again, and would rather have the applicant than any of the other SP4s in the organization, to include two sergeants. g. He was convicted of both specifications and was sentenced to confinement for 4 months, a forfeiture of $60 pay for 4 months, reduction to private (PV1)/E-1, and a bad conduct discharge. 9. The applicant provides and his record contains Special Court-Martial Orders Number 52, dated 25 October 1970, issued by Headquarters (HQ), U.S. Army Support Command, Vietnam, wherein it shows the convening authority approved only so much of the sentence that provided for confinement for 2 months (suspended for 4 months to be automatically remitted unless sooner vacated), a forfeiture of $60 pay for 2 months, reduction to PV1, and a bad conduct discharge. 10. On 5 November 1970, he was assigned to the U.S. Army Transfer Station, Oakland, CA, and placed on excess leave pending the appellate review process. In or about October 1971, his sentence was affirmed. 11. Special Orders Number 214, dated 12 November 1971, issued by the Deseret Test Center, Fort Douglas, UT, shows he was assigned to the Transfer Point, Fort Douglas, for the issuance of a bad conduct discharge, effective 12 November 1971. 12. His DD Form 214 shows he was discharged on 12 November 1971, under the provisions of Army Regulation 635-200, as a result of court-martial with separation program number 292. His service was characterized as under other than honorable conditions and he was issued a Bad Conduct Discharge Certificate. 13. A review of an online inflation calculator shows that $23,617.85 in 1970 would be valued at approximately $148,175.38 in 2016. REFERENCES: 1. Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. 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. 2. 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. DISCUSSION: 1. The evidence of record confirms the applicant pled guilty to and was convicted by a special court-martial of conspiring with a Vietnamese national to commit larceny on two separate occasions of almost $24,000 worth of exchange items. His trial by a special court-martial was warranted by the gravity of the offenses charged. 2. Notwithstanding his contention that he was pressured into pleading guilty, he testified under oath that he had not been coerced and was pleading guilty of his own free will because he was guilty. His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted. 3. By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited. The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 4. The applicant contends that his discharge should be upgraded because he was young, made bad decisions, and had served honorably up until court-martial charges were preferred against him. However, considering the seriousness of his misconduct, it appears his prior conduct was taken into consideration by the judge during the sentencing phase of the court-martial and when the court-martial convening authority only approved so much of the sentence that provided for a forfeiture of $60 pay for 2 months, reduction to PV1, a bad conduct discharge, and suspended the 2 months in confinement. In addition, records show he was over 21 years of age at the time of his misconduct and there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service. 5. After a review of his record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011138 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011138 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2