RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 1 May 2008
DOCKET NUMBER: AR20070018405
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 reconsideration of an earlier request that his bad conduct discharge be upgraded to a general discharge.
2. The applicant states that he did not do the crime. He also points out that he reenlisted for 3 years and he fought in the war in Vietnam.
3. The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) and a letter, dated 7 December 2007, from a Member of Congress.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060015945, on 14 June 2007.
2. The applicants new argument will be considered by the Board.
3. The applicant was inducted on 3 September 1965. He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (light weapons infantryman). He served in Vietnam from 12 March 1966 through 7 March 1967. On 11 May 1967, he was honorably discharged for immediate reenlistment. He reenlisted on 12 May 1967 for a period of 4 years.
4. In the original case it was noted that on 12 July 1967 the applicant was convicted by a general court-martial of robbery. He was sentenced to be discharged from the service with a bad conduct discharge, to forfeit all pay and allowances, and to be confined at hard labor for 3 years. On 22 August 1967, the convening authority approved the sentence.
5. In the original case it was noted that on 11 January 1968 the U.S. Army Board of Review approved the findings but reduced the sentence to confinement at hard labor to 2 years.
6. In the original case it was noted that on 16 April 1968 the U.S. Court of Military Appeals denied a petition for further review.
7. On 3 May 1968, the convening authority ordered the applicants bad conduct discharge executed.
8. Accordingly, the applicant was discharged with a bad conduct discharge on
20 May 1968 under the provisions of Army Regulation 635-204 for conviction by a general court-martial. He had served a total of 1 year, 8 months, and 28 days of creditable active service with 356 days of lost time due to confinement.
9. Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges. Paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.
10. 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 Soldiers separation specifically allows such characterization.
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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he did not do the crime relates to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his general court-martial and appellate proceedings.
2. Trial by court-martial was warranted by the gravity of the offense 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. The applicant's record of service included one general court-martial conviction and 356 days of lost time. As a result, his record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
XX_____ ____XX__ _XX_____ 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 to amend the decision of the ABCMR set forth in Docket Number AR20060015945, dated 14 June 2007.
___ XXXX _______
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20070018405
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA 22202-4508
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