IN THE CASE OF:
BOARD DATE: 28 October 2008
DOCKET NUMBER: AR20080012111
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 general court-martial be expunged from his official records.
2. The applicant states, in effect, that he met the burden of being criminal free of federal crime for 5 years after his discharge in accordance with the Uniform Code of Military Justice (UCMJ). He also contends that he believed the general court-martial would be automatically expunged from his record and that it has been
30 years since the automobile accident.
3. The applicant has not provided 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant served in the Regular Army from 20 February 1975 through
30 April 1978. He was trained in, awarded, and served in military occupational specialty (MOS) 76P (Stock Control Supplyman). He attained the grade of specialist four/E-4. He was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). On 13 February 1980, he was honorably discharged from the USAR upon completion of his statutory military obligation.
3. On 17 March 1976, he was convicted by a general court-martial of stealing
31 rolls of copper tubing, a value of about $1,196.60, the property of the U.S. Government. His sentence consisted of a reduction to the grade of private/E-1, confinement at hard labor for 6 months, and a forfeiture of $200.00 pay per month for 6 months. On 13 May 1976, the sentence was approved, but for the execution of that portion in excess of confinement at hard labor for 4 months, a forfeiture of $200.00 pay per month for 6 months, and a reduction to private/E-1 was suspended for 6 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action. The service of the sentence to confinement at hard labor was deferred on 22 March 1976, and that deferment was rescinded effective 13 May 1976. He was credited with service of adjudged confinement from 17 22 March 1986.
4. On 21 July 1976, the unexecuted portion of the approved sentence to confinement at hard labor for 6 months (excess of 4 months suspended on
13 May 1976 for 6 months, with provision for automatic remission) and a forfeiture of $200.00 pay per month for 6 months, was suspended until 12 November 1976, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action. The applicant was confined from 25 May 27 July 1976.
5. 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. The applicant served in the Regular Army from 20 February 1975 through
30 April 1978. Although he was convicted by a general court-martial, he completed his period of active duty and was honorably released.
2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. There are no provisions in Army regulations under which a court-martial is automatically expunged from an official record. The ABCMR is not empowered to change a court-martial conviction.
3. Given the above, there is no basis upon which to grant the applicant's request. 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
___X____ ___X____ __X_____ 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) AR20080012111
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ABCMR Record of Proceedings (cont) AR20080012111
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