RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  22 May 2008
	DOCKET NUMBER:  AR20070018925 


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

2.  The applicant states, in effect, that he was threatened with a longer term of imprisonment if he did not agree to the court-martial.  He also alleges another Soldier committed the assault, for which he was blamed.  Finally, he alleges he was suffering from mental illness.

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 6 June 1976, the applicant enlisted in the Regular Army for 4 years.  He completed basic combat training at Fort Jackson, South Carolina, and was subsequently assigned to Fort Gordon, Georgia, for advanced individual training as a voice radio operator (05E).

3.  On 7 September 1976, the applicant was placed in pretrial confinement.

4.  On 8 September 1976, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 122 alleging robbery of travelers checks valued at $50.00.




5.  On 22 October 1976, in a pretrial agreement, the applicant agreed to plead guilty to a violation of Article 134, assault with the intent to commit robbery,   provided that the convening authority approved a sentence of no more than a bad conduct discharge and confinement at hard labor for no more than 
20 months, but with no agreement as to forfeitures or reductions. 

6.  On 28 October 1976, a General Court-Martial was convened.  The applicant offered a plea of not guilty to the single specification of robbery, in violation of Article 122, but guilty to the lesser included offense of a violation of Article 134.  To the specification the applicant pleaded guilty, except for the words: "by means of force and violence, steal from the person of…," substituting therefore, respectively, the words "with intent to commit robbery, commit an assault upon…."  The record of trial shows a co-accused Soldier also assaulted the victim, but the applicant admitted in his sworn testimony and in stipulation of fact that he himself kicked the victim.

7.  The military judge accepted the applicant's plea and found him not guilty of Article 122, robbery, but guilty of a violation of Article 134, assault with intent to commit robbery.  The court-martial panel sentenced the applicant to forfeiture of all pay and allowances, confinement at hard labor for 18 months, and a bad conduct discharge.  

8.  On 13 January 1977, 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 20 January 1977, the convening authority approved the sentence. 

10.  On 13 April 1977, the United States Army Court of Military Review found that the error raised by the applicant upon appeal of his case had been waived by his lack of objection during his trial.  Accordingly, it affirmed the finding of guilty and the sentence as approved.

11.  On 1 August 1977, the United States Court of Military Appeals reviewed and denied the applicant's petition for a grant of review. 

12.  General Court-Martial Order Number 727, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 15 August 1977 (as corrected), provided that the sentence to a bad conduct discharge, confinement at hard labor for 18 months, and total forfeiture of pay and allowances, adjudged on
28 October 1976, had been affirmed.  By action of the Secretary of the Army, 
dated 4 August 1977, so much of the sentence to confinement at hard labor in excess of 17 months was remitted.   Article 71(c), UCMJ, having been complied with, the sentence, as thus modified, was to be duly executed.

13.  The applicant's DD Form 214 shows that he was discharged on 
25 November 1977 under the provisions of Army Regulation 635-200, paragraph 
11-2 with a Bad Conduct Discharge Certificate, with service characterized as under other than honorable conditions.

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 characterized 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.  He voluntarily agreed to enter into the pretrial agreement to plead guilty to the lesser included offense, in exchange for a limit on the sentence the convening authority could approve.  The record of trial showed a co-accused Soldier also assaulted the victim, but the applicant admitted in his sworn testimony and in stipulation of fact that he himself kicked the victim.  

3.  There is no apparent evidence of the applicant's alleged mental illness at his trial, and he provides none now.

4.  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)                                         AR20070018925



2


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508