IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100014185


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 that his Dishonorable Discharge (DD) be upgraded to an Honorable Discharge (HD).

2.  The applicant states, in effect, he had honorable service in the United States Marine Corps (USMC), and this service should carry some weight in determining the character of his Army service.

3.  The applicant provides no additional documentation.

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 entered the USMC from 1 April 1971.  He was assigned to Casual Company, Headquarters and Service Battalion, Marine Corps Recruit Depot, San Diego, CA; he never made it to a basic training company before he was discharged on 29 April 1971.  The discharge was honorable.

3.  The applicant enlisted in the Regular Army for 2 years on 26 July 1972.  He completed Basic Combat Training and Advanced Individual Training at Fort Polk, LA.  He was awarded military occupational specialty (MOS) 36K (Wireman) and was assigned to Headquarters and Headquarters Company, 1st Battalion, 2nd Infantry, Fort Riley, KS.

4.  The applicant's records contain four records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for:

	a.  being disrespectful in language toward a Staff Sergeant on 2 February 1973, willfully disobeying a lawful order to get out of bed on 10 February 1973, and failing to go to his place of duty at the time prescribed on 10 February 1973, for which he received a forfeiture of $50.00 pay per month for 1 month, 14 days of extra duty, and 7 days of restriction. 

	b.  being absent without leave (AWOL) from his place of duty from 1 April 1973 to 5 April 1973, for which he received a forfeiture of $70 pay per month for 1 month and 14 days of restriction and extra duty.

	c.  being AWOL from his place of duty from 0700 to 1030 hours on 25 April 1973, for which he received a forfeiture of $50 pay per month for 1 month and
14 days of restriction and extra duty.

	d.  three specifications of failing to go to his place of duty at the time prescribed on 28 July 1973, 29 July 1973, and 6 August 1973, for which he received a forfeiture of $150.00 pay per month for 2 months and 45 days of restriction and extra duty.

5.  Summary Court-Martial Order Number 42, Headquarters, 1st Battalion, 2nd Infantry, Fort Riley, dated 13 July 1973 shows the applicant was convicted of:

* being AWOL from his unit during the period 5-14 June 1973
* being derelict in the performance of his duties on 15 June 1973 by sleeping on duty

He was sentenced to forfeit $79.00 pay per month for 1 month and to perform 45 days of extra duty.

6.  General Court-Martial Order Number 7, Headquarters, 1st Infantry Division, Fort Riley, dated 9 July 1974 shows the applicant was convicted of:

* two specifications of violating Article 120, UCMJ by raping two different women, one on 2 October 1973 and one on 13 November 1973
* two specifications of violating Article 121, UCMJ by stealing money from two different women, one on 13 November 1973 and one on 14 November 1973;
* one specification of violating Article 128, UCMJ by assaulting a woman on 14 November 1973 by holding a knife to her throat;
* three specifications of violation Article 130, UCMJ by unlawfully entering a dwelling on 2 October 1973 with intent to commit rape, on 13 November 1973 with intent to commit rape and larceny, and on 14 November 1973 with intent to commit assault consummated by a battery and larceny
* two specifications of violating Article 134, UCMJ by communicating threats to two different women on 2 October 1973 and 14 November 1973

He was sentenced to be dishonorably discharged, to forfeit all pay and allowances, and to be confined at hard labor for 19 years.  The sentence was adjudged on 8 February 1974.

7.  On 9 July 1974, the General Court-Martial Convening Authority disapproved the finding of guilty of the violation of Article 130 occurring on 13 November 1973, and approved only the finding of guilty of the remainder of the specification of the violation of Article 130 occurring on 14 November 1973.  The remainder of the findings was approved as adjudged.  Only so much of the sentence as provided for a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 18 years was approved.

8.  Following completion of appellate review, General Court-Martial Order Number 849, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 18 August 1975, ordered the affirmed sentence duly executed.

9.  On 19 September 1975, the applicant's DD was executed.

10.  The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.


11.  Army Regulation 635-200 provides guidance on characterization of service:

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.  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 requests a discharge upgrade.

2.  The applicant served 29 days as a Marine and received an HD.  That abbreviated service has no bearing on his Army service.

3.  The applicant's Army service was without merit.  He had 4 records of NJP, a summary court-martial conviction, and a general court-martial conviction for rape, larceny, and assault and battery.  He was ordered to be dishonorably discharged.

4.  While the Board cannot, by law, disturb the finality of a court-martial conviction, it can mitigate the punishment when deemed appropriate.  However, in this situation, it is clear the heinous nature of the applicant's criminal conduct negates any form of clemency.

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)                                         AR20100014185





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ABCMR Record of Proceedings (cont)                                         AR20100014185



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