IN THE CASE OF:	  

		BOARD DATE:	       17 September 2008

		DOCKET NUMBER:  AR20080010675 


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 that his dishonorable discharge be upgraded to honorable.

2.  The applicant does not provide an explanation. 

3.  The applicant does not provide any 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 enlisted on 3 December 1965 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 71A (clerk).

3.  On 29 March 1966, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 21 March 1966 to 24 March 1966.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.   

4.  On 1 April 1966, nonjudicial punishment was imposed against the applicant for failing to fill out a DA Form 6000 (Examination Answer Sheet) which he was instructed to do.  His punishment consisted of a forfeiture of pay, restriction, and extra duty. 

5.  On 18 April 1966, nonjudicial punishment was imposed against the applicant for being absent from his place of duty (bed check).  His punishment consisted of a forfeiture of pay, restriction, and extra duty. 

6.  On 21 November 1966, nonjudicial punishment was imposed against the applicant for being absent from his appointed place of duty and reveille formation, and being derelict in preparing himself for interior guard duty.  His punishment consisted of a forfeiture of pay, restriction, and extra duty. 

7.  On 8 December 1966, nonjudicial punishment was imposed against the applicant for breaking restriction and being absent from his place of duty for approximately 8 hours.  His punishment consisted of a forfeiture of pay, restriction, and extra duty. 

8.  On 18 January 1967, in accordance with his pleas, the applicant was convicted by a special court-martial of failing to obey two lawful orders.  He was sentenced to be reduced to E-1, to serve 1 month hard labor without confinement, and to be restricted for 60 days.  On 20 January 1967, the convening authority approved the sentence. 

9.  On 14 February 1967, nonjudicial punishment was imposed against the applicant for being AWOL from 16 January 1967 to 17 January 1967.  His punishment consisted of a forfeiture of pay, restriction, and extra duty. 

10.  On 6 April 1967, nonjudicial punishment was imposed against the applicant for being AWOL from 2 April 1967 to 3 April 1967.  His punishment consisted of restriction and extra duty. 

11.  On 1 September 1967, contrary to his pleas, the applicant was convicted by a general court-martial of four specifications of committing sodomy upon a male Soldier.  He was sentenced to be discharged with a dishonorable discharge, to forfeit $25 pay per month for 5 years, to be confined at hard labor for 5 years, 



and to be reduced to E-1.  On 8 November 1967, the convening authority approved only so much of the sentence as provided for a reduction to E-1, confinement at hard labor for 3 years, forfeiture of $25 pay per month for 3 years, and a dishonorable discharge.  

12.  On 18 March 1968, the United States Army Judiciary, Office of The Judge Advocate General of the Army, approved only so much of the approved findings of guilty of specification one (sodomy) and found the applicant committed an indecent, lewd and lascivious act with the male Soldier.  The remaining findings of guilty were approved and the sentence was affirmed.

13.  On 21 June 1968, the convening authority ordered the applicant’s dishonorable discharge executed. 

14.  Accordingly, the applicant was discharged with a dishonorable discharge on 
15 July 1968 under the provisions of Army Regulation 635-204 for conviction by a general court-martial.  He had served a total of 1 year, 7 months, and 19 days of creditable active service with 260 days of lost time due to AWOL and confinement.   

15.  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 dishonorable discharge pursuant only to an approved sentence of a general court-martial.  

16.  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.  

17.  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.



18.  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.  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 record of service included, in addition to the general court-martial that resulted in his dishonorable discharge, seven nonjudicial punishments, one special court-martial conviction, and 260 days of lost time.  He was discharged with a dishonorable discharge for committing an indecent, lewd and lascivious act and sodomy.  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 a general or an honorable 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 for correction of the records of the individual concerned.



      _______xxxx___________
               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)                                         AR20080010675



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ABCMR Record of Proceedings (cont)                                         AR20080010675



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