RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 26 February 2004
         DOCKET NUMBER: AR2003091322


         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. Carolyn Wade		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. John T. Meixell		Member
Ms. Mae M. Bullock		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that his bad conduct discharge (BCD) be upgraded.

2. The applicant states "No Excuses."

3. The applicant provides no documents in support of his request.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 21 September 1970. The application submitted in this case is dated 16 May 2003.

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 limitation 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 military records show he was inducted into the Army of the United States on 14 July 1967 for a period of 2 years. He completed basic combat training at Fort Polk, Louisiana and was assigned to Fort Sill, Oklahoma for advanced individual training (AIT). The applicant's records show that while at Fort Sill, he began a pattern of being absent without leave from his unit and never completed AIT.

4. On 9 November 1967, the applicant was tried by special court-martial for absence from his unit from 1 October to 5 October 1967 and 15 October to 22 October 1967. He was found guilty and sentenced to confinement at hard labor for 3 months (suspended) and forfeiture of $60.00 pay per month for 3 months. On 31 January 1968, the suspension was vacated and the unexecuted portion of the sentence to confinement at hard labor for 3 months was executed.

5. On 6 February 1968, the applicant was tried by special court-martial for absence from his unit from 2 December to 29 December 1967. He was found guilty and sentenced to confinement at hard labor for 6 months and forfeiture of $60.00 pay per month for 6 months.

6. On 5 April 1968, the applicant was tried by special court-martial for willfully disobeying a lawful order from his superior commissioned officer and his superior noncommissioned officer. He was found guilty and sentenced to confinement at hard labor for 6 months and forfeiture of $68.00 pay per month for 6 months.

7. On 31 October 1968, the applicant was tried by special court-martial for absence from his unit from 13 September to 18 October 1968. He was found guilty and sentenced to hard labor without confinement and forfeiture of $73.00 pay per month for 4 months.

8. On 18 February 1969, the applicant was tried by special court-martial for absence from his unit from 4 November 1968 to 10 February 1969. He was found guilty and sentenced to confinement at hard labor for 6 months (suspended 6 months) and forfeiture of $73.00 pay per month for 6 months.

9. On 16 January 1970, the applicant was tried by general court-martial for absence from his unit from 3 March to 9 June 1969 and 25 June to 10 November 1969. He was found guilty and sentenced to be discharged with a BCD, confinement at hard labor for 1 year, and forfeiture of all pay and allowances.

10. On 4 February 1970, the applicant's sentence was approved and he was confined at the Installation Detention Facility at Fort Hood, Texas awaiting transfer to the United States Disciplinary Barracks, Fort Leavenworth, Kansas. On 13 February 1970, he was transferred to the United States Disciplinary Barracks.

11. On 26 August 1970, the sentence, having been affirmed by the Court of Military Review on 14 July 1970, was ordered to be executed.

12. On 21 September 1970, the applicant was discharged with a BCD pursuant to his sentence by general court-martial. He was credited with 6 months and 2 days of creditable military service and 552 days of lost time prior to his expiration of term of service (ETS) and 435 days of lost time subsequent to ETS.

13. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 11, of that regulation, then in effect, provided, in pertinent part, for separation of personnel with punitive discharges. It provides that a Soldier will be given a BCD pursuant to an approved sentence of a general court-martial or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

14. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters, which should have been raised in the appellate process. The Board 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 AND CONCLUSIONS:

1. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2. The evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The Board finds no reason to grant clemency in this case.

3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 September 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 20 September 1973. However, the applicant did not 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 file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__aao___ __jtm___ __mmb___ DENY APPLICATION

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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.



                           Arthur A. Omartian
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091322
SUFFIX
RECON
DATE BOARDED	20040226
TYPE OF DISCHARGE	(BCD)
DATE OF DISCHARGE	19700714
DISCHARGE AUTHORITY	AR 635-200, Chap 11
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.6800
3.
4.
5.
6.