IN THE CASE OF:	  

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080007260 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge.

2.  The applicant states that he did not commit the crimes he was charged with.   

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 was inducted into the Army of the United States on 29 June 1960.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 111.00 (Light Weapons Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records do not reveal that he was awarded any awards or decorations or show any significant acts of valor during his military service.

4.  On 19 July 1961, the applicant pled guilty at a General Court-Martial to one specification of attempting to rape a German national, in the vicinity of Lanzenried, Post Emhof, Germany, on or about 28 April 1961.  The Court sentenced him to a forfeiture of pay and allowances, reduction to PVT/E-1, confinement at hard labor for 20 years, and a dishonorable discharge.  The sentence was adjudged on 19 July 1961. 

5.  On 12 August 1961, the convening authority approved only so much of the applicant’s sentence as provided for a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 2 years, and reduction to the lowest enlisted grade.  He further ordered the record of trial forwarded to The Judge Advocate General of the Army for review.  Pending completion of appellate review, he ordered the applicant confined at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas.   

6.  The applicant was transferred to the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas for service of his sentence to confinement.

7.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  Headquarters, Fort Leavenworth, Kansas, General Court-Martial Order Number 740, dated 27 October 1961, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the dishonorable discharge duly executed. 

9.  The applicant was discharged from the Army on 18 November 1961.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations), as a result of court-martial, with a Dishonorable Discharge.  This form further shows the applicant completed 10 months and 5 days of creditable military service.  He also had 199 days of lost time. 

10.  On 29 June 1963, the applicant was released from confinement at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas.  

11.  On 15 April 1976, the Army Board for Correction of Military Records reviewed the applicant's military records and all other available evidence and determined that insufficient evidence was presented to indicate probable error or injustice.  Accordingly, his request for a determination of "not guilty" was denied.  

12.  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.

13.  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.

14.  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.  The applicant contends that his discharge should be upgraded.

2.  The evidence of record shows that the applicant was tried and convicted for a serious offense.  His trial by a General 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.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his 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.



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       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080007260





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ABCMR Record of Proceedings (cont)                                         AR20080007260



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