IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100021724 


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, in effect, removal of the record of court-martial from his military service records and upgrade of his bad conduct discharge to an honorable or a general discharge as a matter of justice.

2.  The applicant states he was denied the right to due process of law because he was not advised of his right to counsel at his sentence hearing and he was not advised he could appeal his general court-martial conviction.

   a.  He states he was:

   	(1)  19 years of age when he was convicted at a court-martial in 1979 for assault and battery with a dangerous or deadly weapon (a knife) against a service member who was threatening to harm him;

   	(2)  mentally disturbed at the time of the incident, not aware of his rights, denied a psychiatric evaluation or competency hearing, indigent at the time, and not 100% sure he received a court-martial;

   	(3)  never advised of the charge against him or read his "Miranda Rights" when he was arrested, the evidence did not support the charge, the incident was never fully investigated, and his commanding officer and first sergeant relied solely on a report of the incident;

   	(4)  found guilty based on hearsay information by a panel of officers who had personal bias and prejudice against him, and he was not allowed to have witnesses testify in his behalf; and

   	(5)  sentenced to a forfeiture of $250.00 pay per month for 4 months; confinement for a period of 8 months at Fort Leavenworth, KS; and a dishonorable discharge [sic].

   b.  His court-martial conviction and discharge was inequitable because it was based on one isolated incident during his 28 months of service during which he completed military training and he had no other adverse actions.

   c.  His court-martial should have been appealed to the U.S. Army Court of Military Review.

   d.  The applicant cites:

   	(1)  Title 10, U.S. Code, section 825c, that provides any enlisted member of an armed force on active duty who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of an armed force who may lawfully be brought before such courts for trial, but he shall serve as a member of a court only if, before the conclusion of a session called by the military judge prior to trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it.  After such a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least, one-third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies.  If such members cannot be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained.

   	(2)  Title 10, U.S. Code, section 1553 (Review of discharge or dismissal), that provides the Secretary concerned shall, after consulting the Secretary of Veterans Affairs, establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal 


representative.  A motion or request for review must be made within 15 years after the date of the discharge or dismissal.

   e.  He concludes that correction of his military service record would allow him to be eligible to apply for veterans' benefits.

3.  The applicant provides copies of two Department of Veterans Affairs (VA) letters.

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 enlisted in the Army National Guard of the United States and Oklahoma Army National Guard (OKARNG) on 7 September 1977 for a period of 6 years.  Upon completion of training he was awarded military occupational specialty 11B (Infantryman).  He was discharged from the ARNG on 6 May 1979 with a general (under honorable conditions) discharge based on his failure to participate.

3.  On 7 May 1979, the applicant was involuntarily ordered to active duty for a period of 18 months and 9 days.

4.  The applicant was tried by a special court-martial in November 1979.  He was found guilty of:

	a.  unlawfully entering the Army Air Force Exchange System Snackbar, Fort Riley, KS, on 22 May 1979, or the offense of unlawful entry; and

	b.  committing an assault upon a Soldier on 6 October 1979 by stabbing him in the leg with a means likely to produce grievous bodily harm, to  wit:  a knife.


5.  On 28 November 1979, he was sentenced to confinement at hard labor for
4 months, forfeiture of $250.00 pay per month for 4 months, and a bad conduct discharge.

6.  On 30 January 1980, the convening authority approved the sentence, ordered the applicant's confinement in the U.S. Disciplinary Barracks, Fort Leavenworth, and directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

7.  In a 25 February 1980 memorandum, the applicant declined a separation physical.

8.  U.S. Disciplinary Barracks, Fort Leavenworth, memorandum, subject:  Request for Excess Leave - [applicant's name and social security number], undated, shows the applicant requested indefinite excess leave pending the completion of appellate review of his case.  He acknowledged with his initials and signature that he was awaiting a judicial decision as to whether he would be discharged with a punitive discharge.  The applicant commenced excess leave status on 7 March 1980.

9.  On 29 February 1980, the U.S. Army Court of Military Review, on consideration of the entire record, found the approved findings of guilty and the sentence correct in law and fact.  The Court noted that the Government's counsel declined to file pleadings.  Accordingly, the findings of guilty and the sentence were affirmed.

10.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Special Court-Martial Order Number 193, dated 25 July 1980, confirmed that in the special court-martial case of the applicant, the sentence was affirmed.  The provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 1 October 1980 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, with issuance of a bad conduct discharge.

   a.  At the time he had completed 1 year and 29 days of net active service this period; 5 months and 21 days of total prior active service; and 1 year, 2 months, and 8 days of total prior inactive service.

   b.  Item 18 (Remarks) shows he had time lost under Title 10, U.S. Code, section 972, from 16 July through 21 July 1979, 6 October through 10 October 1979, and 21 November 1979 through 6 March 1980.

12.  In support of his request, the applicant provides copies of two VA Regional Office, Muskogee, OK, letters, dated 20 January and 27 July 2010, that show the VA decided the applicant's military service for the period 7 September 1977 through 1 October 1980 was not honorable for VA purposes; the applicant and his dependents are not eligible for any VA benefits for this period of service; and only veterans with honorable service are eligible for VA benefits.  It also shows the VA made its decision based on the fact that the applicant was discharged from service under other than honorable conditions, which constitutes a statutory bar to VA benefits.

13.  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.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 11 (Dishonorable and Bad Conduct Discharge), paragraph 11-2, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a special or general court-martial, after completion of the appellate review and after such affirmed sentence has been ordered duly executed.

   b.  Paragraph 3-7a, provides that an honorable discharge 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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.  The applicant contends the record of court-martial should be removed from his military service records and his discharge upgraded because he was denied the right to due process of law, thereby affecting his eligibility for VA benefits.  Specifically, he was not advised of his right to counsel and he was not advised he could appeal his general court-martial conviction.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of enhancing the applicant's eligibility for Government benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  Following the applicant's conviction by special court-martial, he acknowledged that he was requesting excess leave pending the completion of appellate review of his case and judicial decision as to whether he would be discharged with a punitive discharge.  The applicant's record of trial was then reviewed by the U.S. Army Court of Military Review.  The evidence of record shows the applicant was represented by counsel.  Records also show the Court found the approved findings of guilty and the applicant's sentence correct in law and fact.  Thus, the evidence of record refutes the applicant's contentions that he was not advised of his right to counsel or that he was denied the right to due process. Applicant's competency to stand trial is an issue which could have been fully adjudicated at a court-martial.  His records do not contain evidence to support a conclusion that he was not competent to stand trial.  Applicant was convicted by a special court-martial and his conviction was appealed to the U.S. Army Court of Military Review.  The procedures were correct according to law and Army regulations.

4.  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.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20100021724



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021724



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1