IN THE CASE OF:	  

		BOARD DATE:	       16 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080011121 


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 bad conduct discharge (BCD) be upgraded to an honorable discharge.
 
2.  The applicant states that he was discriminated against because he did not receive a speedy and just trial.  He goes on to state that his counsel was transferred to Vietnam and he remained in the stockade for 3 months awaiting trial by court-martial, which he contends was an unfair court-martial.  He also states that he is a patriotic citizen who loves his country and since his discharge he has dealt with challenges to his health and the passing of his brother.

3.  The applicant provides a self authored handwritten letter explaining his application, a picture of a group of Soldiers (presumably the applicant’s basic training platoon), the service announcement for his brother’s passing, seven third party letters of support, and a copy of his DD Form 214.
 
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted with parental consent in Detroit, Michigan on 19 February 1970 for a period of 3 years.  He completed his basic combat training at Fort Knox, Kentucky and his advanced individual training (AIT) as a supply clerk at Fort Polk, Louisiana. 

2.  Upon completion of his AIT he was transferred to Fort Wainwright, Alaska on 13 August 1970, for assignment to the Company C, 808th Engineer Company as a supplyman. 
3.  On 28 September 1970, he was transferred to Fort Richardson, Alaska with his unit. He was advanced to the pay grade of E-3 on 7 November 1970.

4.  On 2 February 1971, nonjudicial punishment (NJP) was imposed against the applicant for two specifications of failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty and restriction.  He did not appeal the punishment.

5.  On 28 June 1971, NJP was imposed against the applicant for unlawfully entering the day room and for stealing beer valued at $86.75, the property of the Army and Air Force Exchange System.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and extra duty.  He did not appeal the punishment.

6.  On 9 July 1971, NJP was imposed against the applicant for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-1.  He did not appeal the punishment.

7.  On 3 November 1971, the applicant was convicted pursuant to his plea, by a general court-martial of robbing a pizza delivery man by force on 4 August 1971 and stealing currency and negotiable instruments of a value of $170.00.  He used a handgun to commit the assault and robbery and was sentenced to confinement at hard labor for 5 years, forfeiture of all pay and allowances and to be dishonorably discharged from the service.

8.  However, the convening authority approved, pursuant to a pre-trial agreement, only so much of the sentence as provided for a BCD, confinement at hard labor for 1 year and forfeiture of all pay and allowances.

9.  His records also contain a Staff Judge Advocate (SJA) review which indicates that the applicant’s counsel attempted to have the charges dismissed due to lack of a speedy trial.  However, the chronology showed that there was continuous movement of the charges and the military judge denied the motion.  The applicant was interviewed by a judge advocate and indicated that he was satisfied with his defense and that he had been advised of his appellate rights.  It is also noted that the victim of the robbery (a civilian) testified that 2 weeks after the incident, the applicant approached him while he was making a delivery and apologized for what had happened and subsequently contacted his employer to discuss the matter.  The victim opined that because the applicant had attempted to make restitution, he should not receive a long prison term.    

10.  A review of the applicant’s official records also shows that he was placed in the post correctional holding detachment at Fort Richardson on 3 November 1971 and on 5 January 1972, he was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas to serve his confinement.

11.  On 23 March 1972, the United States Army Court of Military Review found the findings and sentence as approved by proper authority to be correct in law and fact and affirmed the findings and sentence as approved by the convening authority.

12.  On 7 August 1972, the applicant was discharged pursuant to a duly affirmed court-martial conviction.  He had served 1 year, 8 months and 13 days of total active service and had 280 days of lost time due to confinement.

13.  On 3 July 1972, the United States Court of Military Appeals denied the applicant’s petition for grant of review of his case. 

14. Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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 type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his overall undistinguished record of service.  His service simply does not rise to the level of a discharge under honorable conditions.  

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 this requirement.  

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.




      ___        XXX                ___
                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)                                         AR20080011121





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ABCMR Record of Proceedings (cont)                                         AR20080011121



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