RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070011216 


	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

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Mr. Eric N. Anderson

Member

Mr. David K. Haasenritter

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, his bad conduct discharge be upgraded to a discharge under honorable conditions through clemency.

2.  The applicant states, in effect, that he did not do the things that he was accused of doing and that he only had 5 to 10 days left before he would have honorably completed his enlistment period.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation date of 21 March 1973; a copy of his DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) dated 24 May 2007; and a letter from the Army Review Boards Agency dated 1 June 2007 which says the Army Discharge Review Board can not review his request as the statute of limitations expired. 

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 military records show he enlisted in the Regular Army on 31 January 1968.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 12B (Combat Engineer).

3.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions.  He first accepted NJP on 14 March 1968 for insubordination toward a superior noncommissioned officer (NCO) and for being disrespectful in deportment toward a superior NCO; on 9 May 1968, for being absent without leave during the period 5 May 1968 to 9 May 1968; on 15 May 1970 for being disrespectful in deportment toward a superior commissioned officer and offer of violence through physical threat; and lastly on 12 June 1970 for sleeping while on sentinel duty and for leaving his assigned sentinel duty without authority.

4.  On 4 December 1970, the applicant was convicted by a special court-martial of assault with a fist, failure to obey a lawful order, and failure to go to his appointed place of duty.  His sentence consisted of confinement for 45 days and reduction to the grade of private/pay grade E-1.  The convening authority approved the sentence on 1 February 1971.

5.  On 10 March 1971, the applicant was convicted by a general court martial of aggravated assault and conspiracy to commit aggravated assault.  His sentence consisted of confinement for 15 months, forfeit all pay and allowances, and a bad conduct discharge.  

6.  On 11 August 1971, the SJA stated the finding and sentence were correct in law and fact, the sentence was appropriate for the offense of which the applicant was found guilty, and recommended the sentence be approved.

7.  Records show the applicant was transferred from Europe and confined on 19 August 1971 in the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

8.  On 26 November 1971, the Army Clemency and Parole Board did not grant clemency to the applicant.  On 30 November 1971, by order of the Secretary of the Army the applicant's clemency was denied.  On 3 December 1971, the Office of the Provost Marshal General forwarded a letter to the applicant, which shows the Army Clemency and Parole Board disapproved his clemency request. 

9.  On 26 January 1972, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas General Court-Martial Order Number 247, dated 14 March 1973, ordered the discharge executed.

10.  The applicant's DD Form 214 shows that he was discharged on 21 March 1973 under the provisions of Army Regulation 635-200 (Personnel Separations) because of a conviction by a general court-martial.  The applicant's character of service is under conditions other than honorable.  He had 115 days time lost under Title 10, United States Code, section 972 and 394 days time lost due to confinement subsequent to his normal expiration of term of service.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general court-martial conviction should be set aside and that his discharge should be upgraded to a general discharge.

2.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Accordingly, the Board will treat the applicant's application as a request for clemency.

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JI        _  __ENA__  __DKH__  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 Infante    _____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080131
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.