RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 June 2008
	DOCKET NUMBER:  AR20080001610 


	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 (BCD) be upgraded.

2.  The applicant states that there were errors made throughout his entire 
court-martial.  There were also other incidents mentioned that were not consistent with his court-martial.  He states, in effect, that the alleged witnesses were never given polygraphs to determine the truth of statements given in their testimonies.  He further states that he was improperly found guilty because he was coerced into entering into a plea bargain.  

3.  The applicant provides his Record of Trial; a letter, dated 18 November 1974, from the United States Disciplinary Barracks, Fort Leavenworth, Kansas; a copy of the Bar to Reentry of Fort Leavenworth, Kansas Military Reservation letter, dated 18 November 1974; his DD Form 214 (Report of Separation); and his BCD Certificate.

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 enlisted in the Regular Army on 14 September 1973 for a period of three years.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 76V (equipment storage specialist).  He was advanced to private, E-2 on 8 November 1973 and was assigned to Germany in January 1974.

3.  On 13 May 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for two specifications of failing to go to his appointed place of duty.  His punishment consisted of 14 days extra duty.  

4.  On 2 July 1974, the applicant was found guilty, pursuant to his pleas, by a special court-martial of one specification of robbery of one small vase containing German and U.S. coins, of a value of about $2.00, and one pair of binoculars, of a value of about $20.50 and of an additional specification of stealing an Akai 
reel-to-reel tape recorder, of a value of about $300.00.  He was sentenced to a BCD, confinement at hard labor for 4 months (confinement in excess of 3 months suspended for 6 months), a forfeiture of $150.00 pay per month for 4 months, and reduction to private E-1.

5.  On 18 September 1974, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.  On 22 October 1974, the 
court-martial convening authority ordered the BCD to be executed.  

6.  The applicant was discharged on 18 November 1974 under the provisions of Army Regulation 635-200, chapter 11, based on a court-martial.  He completed 10 months and 16 days of creditable active service with 108 days of lost time due to confinement.

7.  On 21 May 1981, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.  

8.  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.

9.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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 Soldier’s separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:

1.  It is noted that the 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 discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The applicant's contentions relate to evidentiary matters which were finally and conclusively adjudicated in the court-martial and appellate process, and furnish no basis for recharacterization of the discharge.

3.  The applicant’s record of service included one Article 15 for two specifications of failing to go to his appointed place of duty and one special court-martial for robbery and larceny.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

xxx______  xxx_____  xxx_____  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.




      xxxxxxxxxxx_   ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001610


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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