BOARD DATE: 21 January 2010
DOCKET NUMBER: AR20090012204
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.
2. The applicant states, in effect, that he had inadequate legal counsel who did not bring up his service prior to his arrest. He had less than one month to go until the expiration of his term of service. He believes he was inadequately represented because of his color and he would have had better representation if he had been white.
3. The applicant also states that after his trial and confinement by the Army he was handed over to the Germans who also prosecuted and confined him. He believes that his trial by the Germans for the same offense for which he was convicted by the Army was a violation of North Atlantic Treaty Organization (NATO) agreements.
4. The applicant provides a certificate of course completion, dated 29 January 1976; his DD Form 214 (Report of Separation from Active Duty); court documents pertaining to custody of the applicant's biological child, dated in October 1989; and documents printed from an Internet site pertaining to NATO agreements.
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's military records show that he enlisted in the Regular Army on 30 September 1972 and was awarded the military occupational specialty of food service specialist.
3. On 11 March 1975, the applicant, then serving in pay grade E-4, accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave from 2 to 4 March 1975.
4. On 13 August 1975, the applicant was convicted by a special court-martial for falsely making an authorization to temporarily register a privately-owned vehicle with the U.S. Army Europe Registrar of Motor Vehicles, knowing the same to be false, and for wrongfully having possession of 0.58 grams of heroin. His sentence consisted of a reduction to pay grade E-1, confinement for 5 months, forfeiture of $175.00 for 5 months, and a BCD.
5. On 4 February 1976, the U.S. Army Court of Military Review affirmed the applicant's finding of guilty and sentence, having found them to be correct in law and fact.
6. The applicant submitted an appeal to the U.S. Court of Military Appeals.
7. On 23 August 1976, the U.S. Court of Military Appeals denied the applicant's petition.
8. Accordingly, on 20 September 1976 the applicant's sentence was ordered executed and, on 29 September 1976, he was discharged pursuant to his conviction by court-martial.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence or indication that the applicant was provided ineffective counsel. To the contrary, it appears his counsel helped him submit an appeal to the U.S. Army Court of Military Review and the U.S. Court of Military Appeals.
2. The applicant's service record was undoubtedly considered when he was sentenced. However, while the applicant was nearing the end of his enlistment, he was convicted of two serious offenses.
3. If the applicant believes that the Germans lacked jurisdiction to bring him to trial and convict him for an offense that he had already been tried and convicted for by the Army, he should seek relief from a German court with appropriate jurisdiction. However, such deliberations have no bearing on the appropriateness of his discharge from the Army.
4. The applicant's court documents relate to custody proceedings in 1989 and do not relate to criminal proceedings in 1975 or 1976.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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.
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