BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100007423 


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 correction of the following items of his 18 February 1981 DD Form 214 (Certificate of Release or Discharge from Active Duty):

* item 17 (Days Accrued Leave)
* item 18 (Remarks)
* item 22 (Typed Name, Grade Title and Signature of Official Authorized to Sign)
* item 25 (Separation Authority)
*  item 26 (Separation Code)
* item 28 (Narrative Reason for Separation) 

2.  The applicant states his general court martial (GCM) was fraudulent.  He claims he was not allowed to have a Judge Advocate General (JAG) attorney.  He states JAG officers were afraid to take the case because of the back lash or retaliation based on the outcome of the case.  He claims he was told there were no officers available to handle his case and he had to get a civilian attorney.  He states all of his witnesses were shipped to an undisclosed location and were not available due to National Security.  

3.  The applicant claims he requested a change of venue and was unable to challenge the credibility of his accuser and the witnesses against him.  He further states he was not allowed to dismiss his lawyer and get one that had his interest at heart.  He claims the court-martial was biased and he was denied the appellate review process.  

4.  The applicant provides the following documents in support of his application:

* DD Forms 214, dated 18 November 1968 and 18 February 1981
* Medical Records
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative
* VA (Department of Veterans Affairs) File Number 25-997-564
* Court-Martial Records

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 record shows he served in an enlisted status in the Regular Army (RA) from 19 November 1965 through 18 November 1968, and in the United States Army Reserve (USAR) from 19 November 1968 through 
18 November 1971.  It further shows on 26 December 1977, he was appointed a second lieutenant/0-1 (2LT/0-1) in the USAR and began serving on active duty in that status, and he was promoted to first lieutenant/0-2 (1LT/0-2) on 
13 November 1980.   

3.  The record also shows that during his active duty tenure, the applicant earned the National Defense Service Medal and Army Good Conduct Medal.  His record documents no acts of valor or significant achievement.  

4.  On 30 October 1980, a general court-martial court martial (GCM) held at Fort Bliss, Texas, found the applicant guilty of violating the following articles of the Uniform Code of Military Justice (UCMJ) by committing the offenses indicated:

	a.  Article 89 (2 Specifications) - by behaving with disrespect towards a lieutenant colonel, his superior commissioned officer, on or about 23 April 1980 and on or about 29 May 1980;

	b.  Article 90 (2 Specifications)- by willfully disobeying the lawful order of a captain, his superior commissioned officer, on or about 24 April 1980 and disobeying the lawful command of a lieutenant colonel, his superior commissioned officer, on or about 30 May 1980; and 

	c.  Article 128 - by committing aggravated assault upon a first sergeant on or about 29 May 1980.

5.  The sentence imposed on the applicant by the GCM was dismissal from the service.  The GCM convening authority approved the sentence in Headquarters, United States Army Air Defense Center and Fort Bliss, Fort Bliss, Texas, GCM Order 1, dated 8 January 1981.  

6.  On 18 February 1981, the applicant was dismissed from the service after completing 3 years, 1 month and 7 days of service during the period and a total of 6 years, 1 month and 7 days of active military service.  The DD Form 214 he was issued contains the entry "None" in item 17, and item 18 contains an entry indicating Table 3-1 of Army Regulation 601-210 applied.  Item 22 contains the signature of the Chief, Separations Branch, a major, and item 25 lists the authority for his separation as chapter 12, Army Regulation 635-120.  Item 26 lists his separation code as PJD and item 28 lists the narrative reason for separation as dismissal as a result of court-marital.  

7.  On 25 June 1982, Headquarters, Department of the Army, Washington D.C. GCM Order Number 12, dated 25 June 1982, approved the findings of guilty and sentence imposed on the applicant, as affirmed by the United States Army 
Court of Military Review.

8.  The applicant's DA Form 3716 (Financial Record) was not included in the records available for review. 

9.  Army Regulation 635-120 (Officer Resignations and Discharges) set forth the policies and procedures for the resignation or discharge of officers on active duty.  Chapter 12 contained the policy for the dismissal of officers convicted and sentenced to dismissal by a GCM.  It further stated that a USAR officer would be relieved from active duty pending completion of the appellate review.  

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214.  



11.  The version of Army Regulation 635-5 in effect at the time identified the 
DA Form 201 (Military Personnel Records Jacket), DA Forms 2 and 2-1 (Personnel Qualification Records) and DA Form 3716 (DA Financial Record) as the primary record sources for preparing the DD Form 214.  Section II, Chapter 2 provided item-by-item preparation instructions for the DD Form 214.  The instructions for the item 17 stated to enter the number of days of accrued leave paid or the word "None" and the instructions for item 18 include providing for the use of item 18 for entries required by Headquarters, Department of the Army.  The instructions for item 22 stated a commissioned officer, warrant officer or Chief of a STA (Separation Transfer Activity) in the grade of E-7 or above or 
GS-7 or above could sign the DD Form 214.  

12.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The version of the regulation in effect at the time confirms the SPD code PJD was the appropriate code to assign officers separated by reason of dismissal under the provisions of chapter 12, Army Regulation 635-120, by reason of dismissal as a result of court-martial. 

13.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, provided the policy for enlistment in the RA and USAR.  Table 3-1 provided reentry eligibility codes for enlistment in the Army in Table 3-1.  

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 items 17, 18, 22, 25, 26, and 28 of his
18 February 1981 DD Form 214 should be corrected has been carefully considered.  However, there is insufficient evidence to support this claim. 

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.

3.  The applicant’s trial by court martial was warranted based on the severity of the offenses with which he was charged.  The evidence of record confirms the applicant’s case was properly considered through the appellate process and that the guilty findings and sentence were affirmed by the United States Army Court of Military Review.  The evidence reveals no error or injustice related to the applicant's court-martial processing, the appellate review processing, and/or to his subsequent dismissal.  As a result, the evidence of record and the independent evidence he submitted fails to support his assertion that his GCM was unjust.   

4.  Further, the applicant's record documents no acts of valor or significant achievement that would support clemency.  As a result, there is an insufficient evidentiary basis to support an upgrade of the characterization of his service or a change to the authority and reason for his discharge.   

5.  The applicant’s DD Form 214 shows the applicant was properly separated under the provisions chapter 12, Army Regulation 635-120, which at the time contained the authority for the dismissal of officers convicted and sentenced to dismissal by a GCM, and to relieve them from active duty pending completion of the appellate review.  It further shows he was appropriately assigned the SPD code of PJD based on the authority and reason for his discharge.  

6.  The applicant's DD Form 214 was signed a by major who was the Chief of the Separations Branch.  Under the regulatory guidance in effect at the time, this individual was authorized to sign the DD Form 214 by virtue of both his grade and position. 

7.  In addition, the entry referring to the applicability of Table 3-1, Army Regulation 601-210 in item 18 was an appropriate HQDA directed entry because it spoke to the applicant's future eligibility status for enlistment/reenlistment in the Army.  

8.  The available records and the independent evidence provided by the applicant fail to show he was paid accrued leave at the time of his dismissal.  A comprehensive review of the DD Form 214 confirms that all entries questioned by the applicant were authorized entries under the governing regulations in effect at the time.  

9.  Finally, the available evidence does not show the applicant's GCM conviction was fraudulent or that he was denied due process and the applicant has failed to provide evidence to support otherwise.


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)                                         AR20100007423



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont