RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 October 2007
	DOCKET NUMBER:  AR20070007206 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. John T. Meixell

Member

Mr. David W. Tucker

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 an upgrade of his discharge to general, under honorable conditions.

2.  The applicant states that the court did not give adequate consideration to recent traumatic experiences, including his father's accidental death as a switchman-conductor for Southern Railroad.

3.  The applicant did not provide any additional 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's records show that he enlisted in the Regular Army on 7 February 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 62B (Engineer Equipment Repairman).  The highest rank he attained during his military service was specialist four/pay grade E-4.

3.  The applicant's records show that he served in the Republic of Vietnam during the period 3 September 1966 through 2 September 1967.

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.  The applicant's records do not show any significant acts of valor during his military service.


5.  On 13 March 1969, the applicant pled guilty at a General Court-Martial to:

	a.  one specification of assaulting a superior noncommissioned officer on 9 November 1968;

	b.  one specification of failing to obey a General Regulation by having blank ammunition in his billets on 13 November 1968;

	c.  two specifications of possessing marijuana on 13 November 1968 and on 14 January 1969;

	d.  one specification of being absent without leave during the period on or about 9 December 1968 through on or about 14 January 1969; and

	e.  two specifications of wrongfully selling marijuana on 7 January 1969 and 11 January 1969. 

6.  The General Court-Martial sentenced the applicant to a Dishonorable Discharge, 10 years confinement at hard labor, forfeiture of all pay and allowances, and reduction to the grade of private/pay grade E-1.

7.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 50, dated 13 January 1970, shows that the applicant's sentence was ordered executed.

8.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged on 26 January 1970 with a dishonorable discharge.  The form further shows that the applicant completed 2 years, 10 months, and 2 days of creditable service; had 62 days of lost time during military service and 353 days of lost time subsequent to his normal expiration of term of service (ETS).

9.  On 2 July 1970, the applicant was denied clemency.  However, he was approved to be released on parole before 17 August 1970.

10.  There is no evidence in the available records which show that the applicant suffered any traumatic experience resulting from the death of an immediate family member.  Additionally, there is no evidence in the available records which show that the applicant requested assistance from appropriate military authorities for counseling.  There is no evidence in the available records which show that the applicant's traumatic experience was a factor in his court-martial or the cause of his multiple acts of indiscipline.
11.  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 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.

12.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant's record reveals a pattern of indiscipline culminating in his trial by General Court-Martial, which 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.

3.  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 sentence imposed.

4.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of a general discharge.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__js____  __jtm___  __dwt___  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.



							John Slone
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070007206
SUFFIX

RECON

DATE BOARDED
20071018
TYPE OF DISCHARGE
(DD)
DATE OF DISCHARGE
19700126
DISCHARGE AUTHORITY
AR 635-200, Chap 11
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
106.0008
2.

3.

4.

5.

6.