IN THE CASE OF:	

		BOARD DATE:	  2 March 2010

		DOCKET NUMBER:  AR20090014421 


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 dishonorable discharge (DD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, that he was a young adult serving in the military and he used poor judgment and made errors that will affect both him and his family.  He also states that he apologizes for his actions and hopes that his request for an upgrade of his discharge will be granted.  He further states that he has become a productive adult, model citizen and advocate for all veterans.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 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 31 August 1965, at age 17, the applicant enlisted in the Regular Army.  It also shows he was trained in and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman), and the highest rank he attained was private first class/PFC (E-3).  His record documents no acts of valor or significant achievement.  

3.  The applicant's record shows he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for the offenses indicated:  being derelict in his duties by failing to be prepared for guard mount and for assaulting another Soldier by striking him with his fist.

4.  On 13 September 1966, a general court-martial (GCM) convicted the applicant and one other Soldier, contrary to their pleas, of violating Article 90 of the UCMJ by having received a lawful command from his superior officer to secure their equipment and depart the company area for combat operations did willfully disobey the same.  The resultant sentence was a forfeiture of all pay and allowances, confinement at hard labor for 5 years, reduction to the rank of private/E-1, and a DD.  The convening authority approved the sentence.

5.  On 10 December 1966, a special court martial (SPCM) convicted the applicant pursuant to his plea, of violating Article 95 of the UCMJ by on or about 28 November 1966 at the US Army Installation Stockade by escaping from lawful confinement.  The resultant sentence was a forfeiture of $64.00 pay, 
6 months in confinement, and a reduction to E-1.  The convening authority approved the sentence.

6.  On 21 July 1967, the United States Army Judiciary, Office of The Judge Advocate General, after review of the GCM adjudged on 13 September 1966, found two errors in the general court-martial proceedings that required reassessment of the sentence.  After reassessing the sentence the court affirmed the findings and only so much of the sentence as provided for a DD, a forfeiture of all pay and allowances, and confinement at hard labor for 3 years.

7.  On 24 October 1967, a GCM convicted the applicant pursuant to his plea of violating Article 128 of the UCMJ by on or about 7 September 1967, assaulting another person by striking him in the face with his fists and did thereby intentionally inflict grievous bodily harm upon him, to wit:  a broken nose and a lacerated lip.  The resultant sentence was a forfeiture of all pay and allowances, and confinement at hard labor for 5 years, and a DD.  The convening authority approved so much of the sentence as provided for 10 months in confinement, total forfeitures, and a Bad Conduct Discharge (BCD).
8.  On 30 November 1967, GCM Order Number 1089, issued by Fort Leavenworth, Kansas, directed, Article 71c of the UCMJ having been complied with, that the DD portion of the applicant's approved sentence be duly executed.

9.  On 11 December 1967, the United States Army Judiciary, Office of The Judge Advocate General, after review of the GCM adjudged on 24 October 1967 affirmed the findings of guilty and only so much of the sentence as provided for the BCD, total forfeiture, and confinement at hard labor for 10 months.

10.  On 28 December 1967, the applicant petitioned the United States Court of Military Appeals for a grant of review of the Board of Review.  On 29 January 1968, the applicant's request was denied.

11.  On 18 December 1967, the applicant was discharged pursuant to his sentence to a DD.  The applicant's DD 214 shows he was separated under the provisions of paragraph 1a, Army Regulation 635-204 by reason of court-martial (other than desertion).  It also shows he held the rank of PV1, and he had completed a total of 10 months and 7 days of creditable active duty service and 529 days of lost time due to being in confinement.

12.  On 15 February 1968, GCM Order Number 186, issued by Headquarters, Fort Leavenworth, Kansas, directed, Article 71c of the UCMJ having been complied with, that the BCD portion of the applicant’s approved sentence be duly executed.  However, the applicant had already been discharged with a DD.

13.  Army Regulation 635-204 set forth the basic authority for the separation of enlisted personnel.  The policy in effect at the time, established the separation of members with a dishonorable or bad conduct discharge pursuant to an approved sentence of a general court-martial imposing a dishonorable or a bad conduct discharge.  It stated that an enlisted person will be discharged with a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial and would be accomplished only after the completion of the appellate process, and affirmation of the court-martial findings and sentence.

14.  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's contention that his DD should be upgraded to an HD due to his age at the time and the fact that he has become a model citizen was carefully considered.  However, these factors are not significantly mitigating to support granting the requested relief.  The applicant met entrance qualification standards with an age waiver.  Therefore, he was no less mature than other Soldiers of the same age who successfully completed their military service obligations.

2.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  In this case, the evidence provides an insufficient basis to support clemency given the seriousness of the charges for which he was convicted.

3.  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

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

____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)                                         AR20090014421



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ABCMR Record of Proceedings (cont)                                         AR20090014421



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