IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100009838 


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, through his Member of Congress, in effect, that his court-martial conviction be set aside.

2.  The applicant states he did not need to be court-martialed.

3.  The applicant did not provide any additional documentary evidence. 

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 records show he enlisted in the Regular Army on 8 September 1971 and he held military occupational specialty 64C (Motor Transport Operator). The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.
3.  His record reveals a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* 30 August 1972, for wrongfully possessing marijuana
* 18 May 1973, for wrongfully possessing hashish

4.  On 5 April 1974, a court-martial charge was preferred against the applicant for one specification of obstructing justice in that he wrongfully and unlawfully endeavored to influence the testimony of another Soldier who was a witness before a court-martial by communicating a threat to that Soldier.

5.  On 15 April 1974, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial.

6.  In his request for discharge, he indicated he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood if the discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 16 and 19 April 1974, his immediate, intermediate, and senior commanders recommended disapproval of his chapter 10 discharge request and further recommended a special court-martial empowered to impose a bad conduct discharge.

8.  On 2 May 1974, the separation authority determined his request for discharge was not in the best interests of the Army and disapproved his request.


9.  On the same date, he pled not guilty at a special court-martial to the charge of wrongfully and unlawfully endeavoring to influence the testimony of another Soldier who was a witness before a court-martial by communicating a threat to that Soldier.  The court found him guilty of the charge and specification and sentenced him to a reduction to private (PV1)/E-1, confinement at hard labor for 30 days, and a forfeiture of $200.00 pay per month for 3 months.  The convening authority approved his sentence on 10 May 1974.

10.  He was released from active duty on 11 July 1974 by reason of expiration of his term of service with a general, under honorable conditions discharge.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 9 months, and 12 days of creditable active service with 22 days of time lost.

11.  On 7 March 1983, the Army Discharge Review Board upgraded his character of service to fully honorable.  Accordingly, he was issued a new
DD Form 214 reflecting the upgraded characterization of service.

12.  Section 1552, Title 10, U. S. Code prescribes that with respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed, the ABCMR is limited to correction of a record to reflect actions taken by reviewing authorities under chapter 47 of this title (or under the UCMJ (Public Law 506 of the 81st Congress) or action on the sentence of a court-martial for purposes of clemency.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a special court-martial of wrongfully and unlawfully endeavoring to influence the testimony of another Soldier who was a witness before a court-martial by communicating a threat to that Soldier.  His court-martial was warranted by the gravity of the offense charged.

2.  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 Soldier's discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  For example, had the applicant been sentenced to a bad 
conduct discharge and his sentence was ordered executed, the Board could have considered upgrading that discharge.  The Board is not empowered to set aside a court-martial conviction.


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)                                         AR20100009838



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ABCMR Record of Proceedings (cont)                                         AR20100009838



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