| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Mr. Fred N. Eichorn | Chairperson | ||
| Mr. Melvin H. Meyer | Member | ||
| Ms. Karen A. Heinz | Member |
APPLICANT REQUESTS: In effect, that his dishonorable discharge (DD) be upgraded.
APPLICANT STATES: In effect, that he wants the Board to review his discharge based upon his military personnel file and grant him an upgrade.
EVIDENCE OF RECORD: The applicant's military records show:
On 30 June 1969, the applicant entered the Army for a period of 3 years. He was trained and served in military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist) and the highest rank he attained while serving on active duty was private first class/E-3 (PFC/E-3).
The applicant’s military records shows that he served in the Republic of Vietnam (RVN) from 11 August 1970 to 10 August 1971 and that he earned the following awards during his tenure on active duty: National Defense Service Medal; Vietnam Service Medal; RVN Campaign Medal with 60 Device; Combat Infantryman Badge; Parachutist Badge; and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.
The applicant’s record reveals a disciplinary history that included his acceptance of nonjudicial punishment (NJP) on the following 3 separate occasions for the offenses indicated: 6 March 1970, for failure to go to his appointed place of duty; 29 May 1970, for being derelict in the performance of his duties; and 7 January 1971, for twice being in an off-limits area.
On 26 May 1971, a general court-martial (GCM) convicted the applicant of violating Article 134 of the Uniform Code of Military Justice (UCMJ), by assaulting a commissioned officer by detonating a fragmentation hand grenade under the building in which the officer was sleeping, with the intent to commit murder. The resultant sentence included confinement at hard labor for nine years, forfeiture of all pay and allowances, reduction to the grade of private E-1 (PV1); and a DD.
On 4 October 1971, in GCM Orders Number 11, issued by Headquarters, United States Army Forces, Military Region 2, APO San Francisco, California, the GCM convening authority approved the sentence and ordered all but the DD portion of the sentence to be executed.
On 20 June 1973, in GCM Order Number 540, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, the sentence having been affirmed pursuant to Article 66, and Article 71(c) of the UCMJ having been complied with, the DD portion of the applicant’s sentence was ordered to be executed.
On 26 July 1973, the applicant received a DD. The separation document issued to him on the date of his discharge confirms that at that time he had completed a total of 1 year, 10 months, and 27 days of creditable active military service, and he had accrued 761 days of time lost. On 17 August 1973, the Army and Air Force Clemency and Parole Board remitted the sentence to confinement in excess of seven years. On 30 November 1973, he was released on parole. On 7 January 1975, the Army and Air Force Clemency Parole Board remitted the sentence to confinement in excess of six years.
Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.
2. The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time, and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged.
3. The Board finds that the type of discharge appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service. Therefore, it finds there is an insufficient basis to grant clemency in this case.
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. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__FE__ ___KH__ ___MM_ _ DENY APPLICATION
| CASE ID | AR2003090342 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | |
| TYPE OF DISCHARGE | DD |
| DATE OF DISCHARGE | 1973/07/26 |
| DISCHARGE AUTHORITY | AR 635-100 1. . . . . |
| DISCHARGE REASON | Trial by CM |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 31 | 105.0110 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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