RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20070017328 


	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.


 

Director

 

Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 a honorable discharge.

2.  The applicant states, in effect, that a cab driver touched his genitals which provoked his reaction.  He further states that he is now homeless and seeking assistance from the Department of Veterans Affairs.

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 18 September 1974, the applicant enlisted in the Regular Army for 
3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11C1O (Indirect Fire Infantry).  

3.  On 18 December 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for possession of marijuana. The punishment included a forfeiture of $76.00 pay per month for 1 month and 7 days of correctional custody.

4.  On 7 April 1975, charges were preferred under the UCMJ for violation of Article 80, for attempted robbery.  An additional charge was preferred on 17 April 1975 for violation of Article 95, for escape from confinement. 





5.  On 12 June 1975, in a pretrial agreement, the applicant agreed to plead guilty to both charges provided that the convening authority approved a sentence of no more than a bad conduct discharge, confinement at hard labor for 2 years, total forfeitures and reduction to pay grade E-1; and that charge two which set forth other offenses was dismissed upon the court's acceptance of the applicant's guilty plea to the charges. 

6.  On 25 June 1975, 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.  

7.  The military judge accepted the applicant's pleas and found him guilty of all charges and specifications.  He sentenced the applicant to reduction to pay grade E1, a forfeiture of all pay and allowances, confinement at hard labor for 
2 years, and a bad conduct discharge.  

8.  On 14 August 1975, the Staff Judge Advocate, in a written review for the convening authority, summarized the evidence and trial discussion.  The Staff Judge Advocate recommended approval of the sentence. 

9.  On 18 August 1975, the convening authority approved the sentence.   

10.  On 31 August 1976, the United States Army Court of Military Review, on consideration of the entire case, held the findings of guilty approved by the convening authority correct in law and fact.  However, the court found error in the trial counsel's sentencing argument.  As a remedy, the court reassessed that portion of the sentence extending to confinement by affirming only 1 year and 
9 months in confinement.  

11.  General Court-Martial Order Number 1067, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 28 December 1976, provided that the sentence to a bad conduct discharge; confinement at hard labor for 1 year and 9 months; total forfeiture of pay and allowances; and reduction to private, pay grade E1; adjudged on 25 June 1975, had been affirmed.  That portion of the sentence pertaining to confinement was served.  Article 71(c), UCMJ, having been complied with, the sentence, as thus modified, was to be executed.

12.  On 8 December 1976, the United States Court of Military Appeals reviewed and denied the applicant's petition. 

13.  General Court-Martial Order 83, Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 26 January 1977, restored the applicant to duty pending completion of appellate review.

14.  The applicant's DD Form 214 shows that he was discharged on 27 January 1977 under the provisions of Army Regulation 635-200, chapter 3.  He received a bad conduct discharge. 

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established the policy for the separation of members with a dishonorable discharge or BCD pursuant to an approved sentence of a general or special court-martial.  It stated that discharge would be accomplished only after the completion of the appellate process and affirmation of the court-martial findings and sentence.

16.  Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

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.  The applicant has not provided any convincing argument or substantiating evidence to support his contention that he suffered an injustice as a result of his court-martial.  Nor has he established a basis for clemency. 

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

___X____  ____X___  ___X____  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.




      _________X_____________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070017328



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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ARLINGTON, VA  22202-4508