IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100006905 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states that he served from August 1964 to February 1967 and believes that his undesirable discharge should be upgraded to a general discharge.

3.  The applicant provides no additional documents with 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.  The applicant was born on 17 February 1947 and enlisted in the Regular Army with parental consent in Little Rock, AR on 7 August 1964 for a period of
3 years and training as a supply clerk.  He completed all of his training at Fort Polk, LA and he was transferred to Fort Bliss, TX on 4 December 1964.

3.  On 19 January 1965, nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) was imposed against him for failing to go at the time prescribed to his appointed place of duty.

4.  On 26 January 1965, NJP was imposed against him for willfully and wrongfully failing to obey the lawful order from a superior noncommissioned officer.

5.  On 4 February 1965, he was convicted by a special court-martial for stealing currency of a value of $15.00, the property of another individual.  He was sentenced to confinement and forfeiture of pay for 6 months.  On 17 May 1965, the convening authority suspended the unexecuted portion of his sentence to confinement at hard labor for 6 months until 3 August 1965, unless sooner vacated.  On 10 July 1965, the convening authority vacated the suspension and ordered the unexecuted portion of the sentence to confinement to be executed.

6.  On 13 September 1965, he was convicted, pursuant to his pleas, by a general court martial for stealing government property of a value of about $517.00 and stealing United States currency of a value of $70.00 that was the property of the government.  He was sentenced to be dishonorably discharged (DD) from the service, to forfeit all pay and allowances, and to be confined at hard labor for 
5 years.  However, the convening authority approved only so much of the sentence as provided for a DD, total forfeiture of pay and allowances, and confinement at hard labor for 2 years.  The applicant was transferred to the U.S. Disciplinary Barracks at Fort Leavenworth, KS to serve his sentence.

7.  On 14 February 1966, orders were published by Headquarters, 
Fort Leavenworth, which announced that the findings and sentence as approved by the convening authority had been approved and directed that the sentence be executed and that he be confined at the U.S. Disciplinary Barracks.

8.  On 7 March 1966, he was discharged pursuant to a duly affirmed court-martial conviction.  He had served 7 months and 29 days of total active service and he had approximately 335 days of time lost due to confinement.  He was issued a Dishonorable Discharge Certificate (DD Form 260A).


9.  On 31 October 1966, The Adjutant General of the Army, on orders of the Secretary of the Army, directed that an Undesirable Discharge Certificate
(DD Form 258A) be substituted for the DD Form 260A issued to the applicant.  As a result, the previously issued DD Form 214 and DD Form 260A was obtained from the applicant and accordingly, he was issued an a new DD Form 214 and DD Form 258A.

10.  On 6 February 1967, the applicant’s request for restoration to duty was disapproved.  However, his request for clemency was approved and on
6 February 1967, the unexecuted portion of his sentence to confinement at hard labor was remitted.

11.  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.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense.  

4.  The applicant violated the trust placed in him as a Soldier by stealing government property and the property of another individual.  Accordingly, his service does not rise to the level of a discharge under honorable conditions.   

5.  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.

6.  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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, further clemency is not warranted in this case.

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)                                         AR20100006905



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100006905



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1