RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  16 October 2007
	DOCKET NUMBER:  AR20070006135 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. James E. Anderholm

Member

Mr. Joe R. Schroeder

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, that his bad conduct discharge be upgraded to honorable and that he be compensated for his many years of suffering.  

2.  The applicant states, in effect, that he was young and mistreated by the black Soldiers.  He was molested and raped by them.  He was scared and angry and did not know who to tell, so he ran.  This is why he went AWOL (absent without leave) for so long a time.  He further states that he ran for a reason.  All the men in the Army were out to kill him.  He wanted so bad to be a Soldier and to go to war for his country, but he could not even trust the men on his own side.  He also states that he had pushed these events to the back of his mind, but there was anger still coming out.  His psychiatrist diagnosed him with having post traumatic stress disorder (PTSD) symptoms.     

3.  The applicant provides copies of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), a letter from his psychiatrist, and a discharge worksheet.

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.  On 8 March 1968, at 17 years of age and with parental consent, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 13A1O (Field Artillery Basic).  

3.  On 3 July 1968, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for not going to his appointed place of duty at the prescribed time.  The punishment included forfeiture of $20.00 pay per month for one month, and 14 days of extra duty and restriction.
4.  On 23 September 1968, the applicant accepted NJP for leaving the military reservation without an authorized pass.  The punishment included forfeiture of $5.00 pay per month for one month.

5.  On 14 November 1969, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 (Charge I, Specification 1) for AWOL from on or about 17 October 1968 to 14 March 1969; (Charge I, Specification 2) for AWOL from on or about 18 March to 9 October 1969; and (Charge I, Specification 3) for AWOL from on or about 18 October to 21 October 1969.  

6.  On 16 December 1969, the applicant, before a military judge sitting as a General Court-Martial, pled guilty to the charge and all specifications. 

7.  The military judge accepted the applicant's plea and found him guilty of all charges and specifications.  He sentenced the applicant to confinement at hard labor for 5 months, forfeiture of $82.00 pay per month for 5 months, and a bad conduct discharge.

8.  On 14 January 1970, The Staff Judge Advocate, in a written review for the convening authority, stated that no post-trial interview could be conducted in this case due to the applicant’s escape from the post stockade.  He recommended that the findings and sentence be approved and that the applicant be confined in the post stockade pending completion of appellate review. 

9.  On 15 January 1970, the convening authority approved the sentence.  The convening authority further directed that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review and that the applicant be confined in the post stockade or elsewhere as competent authority may direct pending completion of appellate review.  

10.  On 5 March 1970, the United States Court of Military Review examined the case and found the findings of guilty and sentence as approved by proper authority correct in law and fact and determined, on the basis of the entire record, that they should be approved.  The findings of guilty and the sentence were affirmed.

11.  Special Court-Martial Order Number 87, Headquarters, United States Army Training Center, Infantry, and Fort Lewis, Fort Lewis, Washington, dated 15 April 1970, affirmed the sentence to a bad conduct discharge, confinement for 
5 months, and forfeiture of $82.00 pay per month for 5 months, adjudged on 

16 December 1969, as promulgated in Special Court-Martial Order Number 14, this headquarters.  Article 71(c) having been complied with, that portion of the sentence pertaining to confinement was to be served.  

12.  On 29 September 1970, the applicant was convicted by special court-martial of AWOL.  His sentence consisted of confinement at hard labor for 90 days.

13.  Special Court-Martial Order Number 218, Headquarters, United States Army Training Center, Infantry, and Fort Lewis, Fort Lewis, Washington, dated 
29 October 1970, remitted the unexecuted portion of the sentence to confinement at hard labor for 5 months effective on the date of his discharge.

14.  The applicant's DD Form 214 shows that he was discharged on 3 November 1970, under the provisions of Army Regulation 635-200, due to special court-martial order.  He received a Bad Conduct Discharge Certificate with service characterized as under other than honorable conditions.

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 final discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  There is no available independent evidence showing that the applicant was molested or raped prior to or after any of his unexcused absences. 

3.  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 the aforementioned requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JRS___  _JEA ___  __SLP __  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.




    Shirley L. Powers__
     CHAIRPERSON

INDEX

CASE ID
AR2007006135
SUFFIX

RECON
 
DATE BOARDED
20071016
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110
2.

3.

4.

5.

6.