IN THE CASE OF:	  

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090016103 


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 an upgrade of his dishonorable discharge (DD) to a general discharge (GD).

2.  The applicant states:

* 11 December 1994 he completed his 22-year sentence
* his DD should be upgrade to a GD
* prior to 18 May 1970 his active duty record was excellent
* he was advanced four pay grades in 9 months

3.  The applicant provides:

* an undated letter written to the Veterans Administration
* a statement addressed "To Whom It May Concern" dated 12 November 2005
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 29 March 1968
* DD Form 214 dated 2 March 1970
* DD Form 214 dated 11 December 1972






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 was inducted into the Army of the United States on 25 March 1968.  He was honorably discharged on 29 March 1968 for the purpose of immediate reenlistment.  On 30 March 1968, he reenlisted in the Regular Army for 3 years in the pay grade of E-1.

3.  He completed training as a central office telephone switchboard operator.  He was promoted through the ranks to pay grade of E-4.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 7 August and 12 August 1969.

5.  The applicant was honorably discharged on 2 March 1970 for the purpose of immediate reenlistment.  On 3 March 1970, he reenlisted in the Army for 3 years.

6.  On 14 September 1970, he was convicted by a general court-martial of two specification of willfully and unlawfully killing two Soldiers by shooting them with a rifle (voluntary manslaughter), and ten specifications of intent to commit manslaughter (committing assaults on ten other Soldiers by shooting them).  He was sentenced to:

* discharge from the Army with a DD
* confinement at hard labor for 22 years
* reduction to pay grade E-1
* a forfeiture of all pay and allowances




7.  On 2 February 1971, the convening authority approved the sentence as adjudged and ordered that the forfeiture of pay apply to pay becoming due on and after the date of approval.  The applicant was confined to the Headquarters, U.S. Disciplinary Barracks (USDB), Fort Leavenworth, Kansas, pending completion of the appellate review.

8.  In General Court-Martial Order Number 434, dated 8 April 1971, Headquarters USDB, Fort Leavenworth, ordered the uncollected portion of the sentence to forfeiture of all pay and allowances as is in excess of forfeiture of $131.00 pay per month for each month thereafter, suspended until such time as the sentence was ordered into execution, at which time, unless the suspension was sooner vacated, the suspended portion was to be remitted without further action.

9.  On 19 July 1972, the U.S. Court of Military Review affirmed two specifications of manslaughter and ten specifications of a lesser included offense of aggravated assault in which grievous bodily harm was inflected.  The court reassessed his sentence to:

* the issuance of a DD
* confinement at hard labor for 20 years
* reduction to the pay grade of E-1
* a total forfeiture of pay

10.  On 15 November 1972, General Court-Martial Order Number 1314, Headquarters, USDB, Fort Leavenworth, affirmed only so much of the findings of guilty and sentence as provided for:

* each of the ten specifications of (with intent to commit voluntary manslaughter, commit assaults on ten other Soldiers) modified to read "committed an assault upon the alleged victim by shooting him with a rifle and thereby intentionally inflicted grievous bodily harm upon the alleged victim, to wit:  a penetrating bullet wound"
* the issuance of a DD
* a forfeiture of all pay and allowance becoming due on and after the date of the convening authority's action
* confinement at hard labor for 20 years
* reduction to pay grade E-1

11.  The convening authority ordered the modified sentenced executed in General Court-Martial Order Number 1314.


12.  On 11 December 1972, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11, as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 2 years, 2 months, and 3 days of total creditable active service.  He was furnished a DD.

13.  The letter and statement the applicant submitted expresses the circumstances surrounding his discharge from the Army and provides narratives of the incidents that he contends led to his DD.

14.  Title 10, U. S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established policy and procedures for separating members with a dishonorable or bad conduct discharge.  The regulation provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  It further provided the appellate review must be completed and the affirmed sentence ordered duly executed.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were considered and are not supported by the available evidence.

2.  His records show NJP was imposed against him twice before he was convicted by a general court-martial.  His record was not excellent as he suggests.


3.  His overall record of service reveals he did not serve honorably or under honorable conditions.  The DD he was issued appropriately characterizes his service and it is not severe considering the nature of his offenses, which resulted in the deaths of two Soldiers and the wounding of 10 other Soldiers.

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)                                         AR20090016103



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ABCMR Record of Proceedings (cont)                                         AR20090016103



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