RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 December 2007
	DOCKET NUMBER:  AR20070011242 


	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. Jeffrey C. Redmann

Chairperson

Mr. John G. Heck

Member

Mr. Qawiy A. Sabree

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. 

2.  The applicant states, in effect, that he and other service-members were involved in a simple fight that led to a court-martial, during which a fellow service-member lied whereas the applicant was convicted.  He further states that he served his time and received a dishonorable discharge while others were set free with honorable discharges.  He believes that 35 years later, he also deserves an honorable discharge.  He also annotated item 10 on his DD Form 149 (Application for Correction of Military Record) to show that he desires to personally appear before the Board.

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 25 September 1967 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13A (Field Artillery-Basic).  The highest rank he attained during his military service was specialist four/pay grade E4 (Temporary).

3.  The applicant's records further show that he served in the Republic of Vietnam during the period 3 March 1968 through 3 March 1969.  He was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with 1960 Device, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and two Overseas Bars.  His records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions as well as a Summary Court-Martial.  However, the circumstances of the two NJPs and the Summary Court-Martial are not available for review with this case.

5.  Item 42 (Remarks) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was arrested by civil authorities while on an authorized pass, and charged with drunk driving.  He was convicted on 2 May 1969, fined $110, and sentenced to 10 days of confinement in the hands of civil authorities. 

6.  On 28 November 1969, the applicant pled guilty at a Special Court-Martial to one specification of striking a member of his unit and a civilian with his fist.  The Court sentenced him to confinement at hard labor for 3 months; forfeiture of $40 pay for 5 months; and reduction to the grade of private/E-1.  The sentence was adjudged on 28 November 1969 and approved on 12 December 1969.

7.  Item 44 (Time Lost) of the applicant’s DA Form 20 shows that he was confined during the period 29 November 1969 through 12 February 1970, as a result of his Special Court-Martial on 28 November 1969. 

8.  On 25 November 1970, the applicant pled not guilty at a General Court-Martial to:

	a.  Charge I, one specification of stealing about $55 from a Soldier (Corporal Z) by means of force and violence on 3 September 1970;

	b.  Charge II, specification 1, committing an assault upon a Soldier (Corporal Z) by striking him on the head and body with a means likely to produce grievous bodily harm (a club) on 3 September 1970;

	c.  Charge II, specification 2, committing an assault upon a second Soldier (Sergeant K) by striking him on the head with a club and did intentionally inflict grievous bodily harm upon him (a deep cut in the head) on 3 September 1970;

	d.  Charge II, specification 3, committing an assault upon another Soldier (Corporal Z) by pointing at him a dangerous weapon (a pistol), on 3 September 1970;

	e.  Charge II, specification 4, committing an assault upon a second Soldier (Sergeant K) by pointing at him a dangerous weapon (a pistol), on 3 September 1970;
	f.  Additional Charge I, one specification of striking another Soldier (Specialist Four B) in the face with his fist, and did, thereby intentionally inflict grievous bodily harm upon him (a deep cut over the left eye), on 2 September 1970; and

	g.  Additional Charge II, one specification of committing an assault upon a Soldier (Specialist Four B), with intent to commit robbery, by striking him in the face with his fists, on 2 September 1970.  

9.  The Court found the applicant guilty of:

	a.  Charge I and the specification of Charge I of stealing about $55 from a Soldier (Corporal Z) by means of force and violence on 3 September 1970; 

	b.  Specification 1 of Charge II, of unlawfully striking a Soldier (Corporal Z) by striking him on the head and body on 3 September 1970;

	c.  Specification 2 of Charge II, of unlawfully striking a second Soldier (Sergeant K) on the head with a club on 3 September 1970;

	d.  Specification 3 of Charge II, of committing an assault upon another Soldier (Corporal Z) by pointing at him a dangerous weapon (a pistol), on 3 September 1970; and

	e.  Specification 4 of Charge II, of committing an assault upon a second Soldier (Sergeant K) by pointing at him a dangerous weapon (a pistol), on 3 September 1970.

10.  The Court found the applicant not guilty of one specification and additional Charge I, of striking a Soldier (Specialist Four B) in the face with his fist, and did, thereby intentionally inflict grievous bodily harm upon him (a deep cut over the left eye), on 2 September 1970; and one specification and additional Charge II, of committing an assault upon a Soldier (Specialist Four B), with intent to commit robbery, by striking him in the face with his fists, on 2 September 1970.

11.  The Court sentenced the applicant to be dishonorably discharged from the service; forfeiture of $120 per month for 42 months; confinement at hard labor for 42 months; and reduction to the grade of private/E-1.  The sentence was adjudged on 25 January 1971.  He was initially confined at Fort Hood, Texas. 
12.  On 20 April 1971, the convening authority approved only so much of the sentence as provided for a bad conduct discharge; confinement at hard labor for 2 years; and forfeiture of $50 pay per month for 12 months.  The convening authority further ordered the record of trial forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  Pending appellate review, the applicant was ordered confined at Fort Leavenworth, Kansas.  He arrived at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, on 21 April 1971.

13.  On 10 July 1972, The United States Army Court of Military Review denied the petition of the applicant for a grant of review. 

14.  On 19 August 1971, the applicant was denied clemency and parole.  

15.  On 13 March 1972, the applicant was denied clemency and his restoration to duty was disapproved.  However, his release on parole was approved and granted effective 22 April 1972.

16.  Subsequent to his parole, the applicant was discharged from the Army on 6 November 1972.  The DD Form 214 he was issued shows he was discharged in accordance with paragraph 11-1b of Army Regulation 635-200 (Personnel Separations) with an Under Other Than Honorable Conditions Discharge.  The form further shows that he completed 2 years, 7 months, and 9 days of creditable service.  He also had 144 days of lost time due to being in confinement and 557 days of lost subsequent to normal expiration of his term of service. 

17.  Army Regulation 635-200 provides for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a special court-martial imposing a bad conduct discharge.  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.

18.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.
19.  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.

20.  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 discharge should be upgraded.

2.  Evidence of record shows that the applicant had a history of misconduct to include two Article 15s, one Summary Court-Martial, one Special Court-Martial, and one General Court-Martial.  The applicant's trial by a General Court-Martial was warranted by the severe 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.  After a review of the applicant’s entire record of service, it is crystal clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jcr___  __jgh___  __qas___  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.




							Jeffrey C. Redmann
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070011242
SUFFIX

RECON

DATE BOARDED
20071213
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19721106
DISCHARGE AUTHORITY
AR 635-200, Chap 11
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
106.0008
2.

3.

4.

5.

6.