RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070011006 


	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:


Mr. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 that his bad conduct discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, that it has been 33 years since his discharge, and he believes he should now be entitled to a general discharge.  He further states that with medical bills and the high cost of living, we all need some help. 

3.  The applicant provides a copy of his Report of Separation from Active Duty (DD Form 214). 

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 15 August 1974, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 64C1O (Motor Transport Operator).  

3.  On 2 December 1974, the applicant was assigned for duty as a light vehicle driver at Fort Ord, California.

4.  On 6 March 1975, the applicant was promoted to private first class, pay grade E3.

5.  On 11 March 1976, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to report for duty and for dereliction of duty.  The punishment included reduction to private/pay grade E2 (suspended), a forfeiture of $50.00 pay per month for 
1 month, 14 days of restriction (suspended), and 7 days of extra duty.  He did not appeal the punishment.
6.  On 26 May 1976, the applicant accepted NJP for violating a lawful order from his superior noncommissioned officer.  The punishment included reduction to private/pay grade E2 (suspended), a forfeiture of $85.00 pay per month for 
1 month ($45.00 suspended), 14 days of restriction (suspended), and 14 days of extra duty.  He did not appeal the punishment.

7.  On 2 June 1976, the applicant failed to report for morning formation.  The commander vacated the suspended portion of punishment imposed by NJP on 26 May 1976.

8.  On 14 July 1976, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 81 (conspire to commit an offense under the UCMJ); violation of Article 108 (sell United States Government property without proper authority to an unauthorized person), and violation of Article 
121 (steal United States Government Property valued at $3,300.87).

9.  On 24 August 1976, a General Court-Martial was convened.  The applicant offered a plea of guilty to all charges and specifications in return for a more lenient sentence pursuant to the terms of a pretrial agreement.  

10.  The military judge accepted the applicant's plea and found him guilty of all charges and specifications.  A panel of members sentenced the applicant to reduction to private (pay grade E1), a forfeiture of $261.00 pay per month for 
18 months, confinement at hard labor for 18 months, and a bad conduct discharge.  

11.  On 12 October 1976, the Staff Judge Advocate, in a written review for the convening authority, summarized the evidence and trial discussion.  He stated that the court was legally constituted throughout the trial and had jurisdiction over the offense and the person tried; that the sentence was within the power of the court to adjudge and within the prescribed limitations on punishment; and that there were no errors which materially prejudiced the substantial rights of the applicant.  The Staff Judge Advocate recommended that the findings of guilty and sentence be approved. 

12.  On 19 October 1976, the convening authority approved only so much of the sentence as provided for a reduction to private, pay grade E1, forfeitures of $240.00 per month for 6 months, confinement at hard labor for 6 months, and a bad conduct discharge.



13.  On 18 January 1977, the United States Army Court of Military Review examined the case.   The applicant contended that the military judge failed to advise the applicant of his rights as to allocution.  It agreed that the failure to render the proper allocution advice prior to sentencing was an error; however, it also agreed that this error did not result in any prejudice.  It affirmed the findings of guilty and sentence.

14.  General Court-Martial Order 99, Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 26 January 1977, restored the applicant to duty pending completion of appellate review.

15.  On 17 May 1977, the United States Court of Military Appeals reviewed and denied the applicant's petition. 

16.  The applicant's Report of Separation From Active Duty (DD Form 214) shows that he was discharged on 24 June 1977 under the provisions of Army Regulation 635-200, chapter 11-2.  He received an under other than honorable conditions characterization of service.

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.  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

__JRH___  __DKH__  __EEM__  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.





____David K. Haasenritter_________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
 
DATE BOARDED
20080125  
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
105
2.

3.

4.

5.

6.