IN THE CASE OF:	  

		BOARD DATE:	        02 OCTOBER 2008

		DOCKET NUMBER:  AR20080011418 


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 a general discharge (GD), under honorable conditions.

2.  The applicant states, in effect, that he has been working and he has had no convictions under the law. 

3.  The applicant did not provide additional documentary evidence in support of this 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.  On 25 June 1968, the applicant enlisted into the Regular Army for a period of 2 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 36K (Wireman).  He attained the grade of private first class/E-3.  
3.  On 2 June 1969, a special court-martial convicted the applicant of 11 specifications of failing to go to his appointed place of duty; disobeying a lawful order from an officer; assaulting 2 fellow Soldiers; and breaking restriction.  He was sentenced to confinement at hard labor for 6 months (suspended), a forfeiture of $73.00 pay per month for 6 months, and a reduction to the grade of private/E-1.  The confinement at hard labor was later vacated and he was confined for a period of 5 months. 

4.  On 20 March 1970, a general court-martial convicted the applicant of being absent without leave (AWOL) from 1 November 1969 – 14 February 1970; resisting apprehension; and stealing a wallet from an airman by force and violence.  He was sentenced to confinement at hard labor for 2 years, forfeiture of all pay and allowances, and a Dishonorable Discharge.  The sentence was approved.  He was confined at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas.

5.  The record of trial was forwarded to The U.S. Army Court of Military Review. On 7 December 1970, the court affirmed the findings of guilty and so much of the sentence as provided for a dishonorable discharge was changed to a Bad Conduct Discharge.  

6.  On 21 December 1970, the applicant was released on parole to reside with his parents.  He was to reside in the Roanoke, Virginia area and was assigned a Parole Advisor.

7.  On 14 July 1971, general court-martial convening authority took final action on the sentence noting the provisions of Article 71c had been complied with.  

8.  On 27 July 1971, the applicant was discharged under the provisions of chapter 11, Army Regulation 635-200, with a Bad Conduct Discharge.  He was credited with 1 year and 22 days of active duty service.  His service was characterized as under other than honorable conditions on his DD Form 214.

9.  On 6 October 1971, the Roanoke Virginia Police Department advised the U.S. Disciplinary Barracks, that the applicant had been arrested on the charge of assault.  He appeared before the Juvenile and Domestic Relations Court on
21 September 1971 and the case was dismissed with a warning upon payment of court costs.

10.  On 22 November 1971, the applicant's Parole Advisor informed the U.S. Disciplinary Barracks that the applicant was reprimanded for changing employment without the Parole Advisor's permission, and he was warned regarding his drinking habits.

11.  On 14 January 1972, the applicant's Parole Advisor received a complaint from the Colonial American National Bank that the applicant had abused the use of a MasterCharge account, and that judgment in the amount of $1,017.65 plus 15 percent attorney fees had been obtained against the applicant.  The applicant had purchased 7 handguns, plus ammunition.

12.  On 17 March 1972, the applicant's parole was suspended.

13.  On 10 May 1972, the U.S. Disciplinary Barracks was advised by letter that the applicant had absconded from the parole area.  The Commandant of the U.S. Disciplinary Barracks was directed by the Secretary of the Army to lodge a detainer with the U.S. Attorney, Roanoke, in the applicant's case.

14.  On 28 June 1972, the Assistant U.S. Attorney issued a warrant for the applicant to be taken into custody.  

15.  The U.S. Disciplinary Barracks later received notification by letter, dated
9 May 1974, that the applicant was found guilty of first degree murder in a jury trial in the Circuit Court, Roanoke City, on 29 March 1974.  He was sentenced to
25 years in the Virginia State Penitentiary.

16.  The applicant appeared before a U.S. District Court, Roanoke, on 2 April 1974 to answer an 8-count indictment, charging him with violation of the Federal Firearms Act.  He entered a plea of guilty and received an indeterminate sentence under the Young Adult Act, a zero to 6 year sentence which began the day of sentencing.

17.  The applicant again appeared before the Circuit Court, City of Roanoke, on
3 May 1974 for a jury trial on the charge of malicious assault.  He was given an additional 3-year State sentence to run consecutively with the 25 year sentence for murder.  

18.  On 3 December 1974, a parole violation hearing for the applicant was conducted at the Virginia State Penitentiary.  The hearing officer found that the applicant violated Condition 10 of his Parole Agreement, by being arrested and convicted of first degree murder, violation of the Federal Firearms Act, and 

malicious assault.  He recommended that the applicant's parole be revoked.  In view of the applicant's aggregate 28 years State sentences on which he was then serving, he recommended that the unexecuted portion of the applicant's sentence be remitted.  He would be eligible for parole consideration on 25 June 1980.

19.  Army Regulation 635-200 (Enlisted Personnel Separations), chapter 11, provided the policy for discharge of enlisted personnel pursuant only to approved sentences of a general or special court-martial empowered to impose a dishonorable or bad conduct discharge.

20.  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.

21.  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 change a court-martial 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 official record revealed serious misconduct resulting in a special and general courts-martial.  Further, even when given the opportunity at parole, the applicant was arrested, convicted by civil authorities, and sentenced to an aggregate 28 years in the State penitentiary.  His contentions were noted; however, he failed to provide sufficiently mitigating evidence to warrant a change in his type of discharge.


3.  The Board is empowered to change the characterization of the discharge if clemency is determined to be appropriate.  Given the above, and after a thorough review of the applicant’s record and any evidence submitted, there is no cause for clemency.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any 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)                                         AR20080011418



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ABCMR Record of Proceedings (cont)                                         AR20080011418



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