IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100021934 


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 an upgrade of his dishonorable discharge (DD).

2.  The applicant states, in effect, that because of his DD he has been denied the opportunity for increased earning potential, employment, quality of life, and medical benefits.

3.  The applicant does not provide any additional documents in support of his application.  

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 Regular Army on 26 May 1967 for a period of
3 years.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 91A (Medical Corpsman).  The applicant's record shows the highest rank/grade he attained during his tenure of service was private first class (PFC)/E-3.

3.  Between 12 June 1967 and 1 March 1968 the applicant received four nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for the following offenses:

* on 12 June 1967 for being absent from his appointed place of duty, indulging in use of alcoholic beverage, attempted assault of a Trainee Platoon Sergeant, and being insubordinate towards a noncommissioned officer (NCO)
* on 12 July 1967 for disobeying a lawful order of an NCO, and being disrespectful and insubordinate to the same NCO
* on 26 February 1967 for failing to go at the time prescribed to his appointed place of duty
* on 1 March 1968 for failing to go at the time prescribed to his appointed place of duty

4.  On 13 April 1968, the applicant was convicted by a special court-martial (SPCM) of:

* violating curfew on 1 March 1968
* resisting arrest on 1 March 1968
* being found sleeping upon his post on 6 March 1968
* possessing marijuana on 1 March 1968

He was sentenced to a reduction to private (PV1)/E-1; confinement at hard labor for 6 months, and a forfeiture of $68.00 pay per month for 6 months.  The sentence was adjudged on 13 April 1968 and approved on 22 April 1968.

5.  On 15 November 1968, the applicant was convicted by a general court-martial (GCM) of:

* violating a lawful general regulation by wrongfully having in his possession a hand grenade and a switch blade on 13 September 1968
* committing an assault upon an NCO on 9 September 1968
* unlawfully striking a Soldier on the nose with his fist on 9 September 1968
* committing an assault upon an NCO and another Soldier on
12 September 1968
* 
wrongfully communicating a threat to an NCO and another Soldier on
12 September 1968
* unlawfully entering the dwelling of another Soldier to commit an assault on 12 September 1968

He was sentenced to forfeiture all pay and allowances, confinement at hard labor for 5 years, and to be dishonorably discharged.  The sentence was adjudged on 15 November 1968 and approved on 4 February 1969.

6.  On 23 April 1969, the U.S. Army Court of Military Review set aside one specification of the assault charge.  The court further found some aspects on sentence multiplicious.  The court reassessed the sentence to a DD, total forfeiture of all pay and allowances, and confinement at hard labor for 2 years.

7.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at the time shows he was discharged on 
2 September 1969 with a DD as a result of a court-martial.  He completed a total of 11 months and 21 days of total active service with 473 days of time lost.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a DD or a bad conduct discharge (BCD).  It stipulates, in pertinent part, that a Soldier will be given a DD or BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

9.  Army Regulation 635-200, 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.

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 evidence of record shows no error or injustice related to the applicant’s SPCM/GCM convictions and/or his subsequent DD.  The applicant’s conviction was appropriately reviewed by the U.S. Army Court of Military Review.  The review determined the DD was correct in law and fact.

2.  The applicant's overall record of service reveals no acts of valor or significant service warranting special recognition.  Therefore, there is no basis for granting the applicant's requested relief.

3.  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.  Given the applicant's undistinguished record of service and 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.

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)                                         AR20100021934



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021934



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1