BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20100007505 


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 his under other than honorable conditions (UOTHC) discharge, in effect, that his dishonorable discharge (DD), be upgraded to a general discharge.

2.  The applicant states he did extremely well in initial entry training.  However, when he was assigned to Germany he was introduced to the drug world by Soldiers being reassigned from Vietnam.  He requested help and he remained free of drugs on and off.  After he had been drug free about 8 months, he requested a change in his career field.  While in training to become a dental laboratory technician, he relapsed and began using drugs again.  One night he became sick and desperate for drugs and committed a crime for which he was sentenced to 2 years in confinement and a DD.

3.  The applicant points out he served honorably 2 1/2 years and he has not been in any trouble for the past 40 years.  He has been a model citizen and has overcome his addiction.

4.  The applicant provides three letters attesting to his giving and generous nature, loyalty, honesty, faithfulness, and helpfulness.






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 military records show that he enlisted in the Regular Army on 6 November 1969.  He was awarded the military occupational specialty of armored reconnaissance specialist, and he was promoted to pay grade E-3.  He immediately reenlisted while in Germany.

3.  On 20 September 1971, the applicant was convicted, pursuant to his pleas, by a general court-martial of putting a Soldier in fear with the intent to commit robbery, and committing an assault on another Soldier by threatening him with a pistol and demanding money.  

4.  The applicant was sentenced to a DD, total forfeitures of pay and allowances, confinement for 2 years and 6 months, and a reduction to pay grade E-1.

5.  The convening authority was provided a legal review prior to making a decision on whether to approve, disapprove or modify the court-martial sentence. The legal review reported the applicant had asked the court to consider that he had robbed the two Soldiers as a last resort to provide money for his pregnant wife and family after attempts to borrow money and obtain employment had failed.  Pursuant to a pretrial agreement the convening authority approved a 
DD, 15 months in confinement, reduction to pay grade E-1, and a forfeiture of $75.00 pay for 15 months.

6.  On 23 February 1972, the U.S. Army Court of Military Review affirmed the applicant's court-martial findings and the sentence.  


7.  Accordingly, on 11 May 1972, the applicant's sentence was ordered to be executed.

8.  During a clemency and parole review, the applicant stated he did not commit the offenses, however, he pled guilty in to get a light sentence.  He said that if he had been put in a line-up the two victims would not have picked him as the assailant.  

9.  On 5 June 1972, the applicant was issued a DD.

10.  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 was convicted, pursuant to his pleas, to two violent crimes.  His case was affirmed by the U.S. Army Court of Military Review.  As such, no error or injustice is found in the applicant's conviction.

2.  The applicant now contends he relapsed, he was addicted, and desperate for drugs, and he committed the offenses for which he was convicted.  However, he asked the court to consider that he had robbed the two Soldiers as a last resort to provide money for his pregnant wife and family after attempts to borrow money and obtain employment had failed.  Additionally, at the clemency and parole review he stated that he did not commit the offenses, that he pled guilty to get a light sentence.  He stated if he had been put in a line-up the two victims would not have picked him as the assailant.  

3.  Since the applicant's version of why he committed the two crimes cannot be determined due to his having different versions of what happened, extenuating circumstances for committing the two crimes cannot be used as matters of mitigation.  As such, there is no error or injustice in the court-martial sentence.  Additionally, the sentence is within the range of his pretrial agreement and substantially less than the maximum sentence.


4.  While it is commendable that the applicant is now a drug-free law abiding citizen, this is not sufficient to warrant upgrading a properly issued discharge.

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)                                         AR20100007505



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)