IN THE CASE OF:	  

		BOARD DATE:	        28 April 2009

		DOCKET NUMBER:  AR20080018555 


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, in effect, that his bad conduct discharge be upgraded to a general under honorable conditions discharge and that the court-martial be expunged from his official military personnel file (OMPF).

2.  The applicant states he was unjustly accused of a crime he did not commit.   He states he was processed without due process of the Uniform Code of Military Justice (UCMJ) or rights governed by the constitution.  He states he was processed out of the service by way of force/choice of separation, to take excess leave, accept a bad conduct discharge, or go back to basic training and back to Korea.  He states he elected excess leave.  He states he did not receive adequate counsel or a physical.  He states he would like for his record to be expunged so that he can lead a productive life.

3.  The applicant provides, in support of his application, a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), his DD Form 214 (Report of Separation from Active Duty) with an effective date of 6 February 1976, and two letters of reference from the Salvation Army. 

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 military personnel records show he enlisted in the Regular Army on 28 September 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).  He was assigned to Battery A, 1st Battalion, 2nd Air Defense Artillery in Korea on 25 April 1974.

3.  On 20 November 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for being absent from his appointed place of duty.

4.  On or about 1 May 1975, the applicant was tried before a special court-martial.

	a.  The applicant pled not guilty to disobeying a lawful order from a noncommissioned officer (NCO), resisting apprehension, and three specifications of robbery by force and violence.

	b.  On a motion by the defense for a finding of not guilty, the military judge dismissed the disobeying a lawful order from an NCO, resisting apprehension, and two specifications of robbery by force and violence.

	c.  The applicant was found guilty of one specification of robbery by force and violence.

	d.  The applicant's sentence consisted of forfeiture of $200 pay per month for five months, reduction to the grade of private (PV1)/pay grade E-1, confinement at hard labor for five months, and a bad conduct discharge (BCD).

5.  On 29 May 1975, the convening authority approved the sentence.  

6.  On 26 August 1975, the applicant requested that upon completion of his sentence (confinement) he be granted indefinite excess leave until the completion of his appellate review.  On 27 August 1975, his request was 


approved to be effective 28 August 1975.  In the Special Instructions of his appellate leave orders it states "If appellate review is completed and a discharge approved, subject individual may be asked to appear at a conveniently located military installation for a discharge physical."

7.  A Standard Form 93 (Report of Medical History), dated 27 August 1975, indicated the applicant was in "Good Health" at the time he commenced his appellate leave.  He had checked several blocks in item 11 (Have you ever had or have you now…) with a "Yes" response, indicating he had some health concerns.

8.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas Special Court-Martial Order Number 12, dated 20 January 1976, indicated the applicant's sentence had been affirmed and ordered the sentence executed.

9.  On 6 February 1976, the applicant was discharged as a result of a court-martial.  The applicant's net active service was 2 years and 11 days.  He had 
118 days time lost.  

10.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

11.  The applicant submitted two letters of reference from the officer-in-charge and another employee of the Salvation Army in Orlando, FL.  The letters indicated the applicant had recently completed an eight month rehabilitation program wherein he exceeded the requirements of the program.  According to the letters, the applicant has been hired by the Salvation Army and placed in a position of trust.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge; provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed.

13.  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.

14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes policies, operating tasks, and steps governing the OMPF, the Military Personnel Records Jacket (MPRJ), the Career Management Individual File (CMIF), the Army Personnel Qualification Records, and Military 
Personnel Information Management as a work category.  Table 2-1 of the regulation provides, in pertinent part, that court-martial orders will be filed permanently in the performance section of the OMPF when a finding of guilty is given on at least one specification.

15.  Table 6-1 of Army Regulation 600-8-104 provides, in pertinent part, that court-martial orders will be filed permanently in the MPRJ when a finding of guilty is given on at least one specification.

16.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR 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.  The applicant contends he was given a choice of taking excess leave, accepting a bad conduct discharge, or going back to boot camp and returning to Korea.  The applicant has submitted no evidence to support this contention.  He was in fact convicted by a special court-martial and part of his sentence was a bad conduct discharge.  The only choice he had was whether or not to take excess leave.  [He might have been offered the opportunity to Soldier back and have his BCD remitted if he successfully completed the retraining brigade.  If so, this was an opportunity to seek clemency and not an ultimatum.]

2.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and 


discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

4.  The letters of reference submitted by the applicant were noted.  However, they do not outweigh the serious nature of the charge the applicant was convicted of by a special court-martial.  The applicant's entire record of service 
was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge.  

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to general under honorable conditions discharge.

6.  The applicant contends his record should be expunged so that he can lead a productive life.  However, the applicant's court-martial order is properly filed in the OMPF in accordance with the governing regulation.  There is no evidence of record and the applicant has not provided any evidence that shows his conviction or sentence were improper.  Therefore, there is no basis for granting the applicant’s request to expunge the special court-martial order from his military records.

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.



      __________X_____________
               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)                                         AR20080018555



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ABCMR Record of Proceedings (cont)                                         AR20080018555



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