IN THE CASE OF:	  

		BOARD DATE:	    28 April 2011

		DOCKET NUMBER:  AR20100023714 


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 clemency and reconsideration of his court-martial appeal that was not handled properly.  

2.  The applicant states:

* the sentenced confinement was too long ? he should have received confinement credit for the time he spent on restriction
* he was denied his right of appeal
* he was never properly discharged
* when the convening authority disapproved the findings and sentence of the special court martial (SPCM) the time he was under those charges should have been used to reduce his ultimate confinement time ? the only confinement he received credit for was from 9 through 18 April 1968 ? according to Title 10 United States Code, section 863 a more severe sentence cannot be imposed upon a rehearing
* his assigned appellate counsel failed to file the proper documents thereby depriving him of his right of effective appeal.

3.  The applicant provides 19 numbered exhibits [described below in detail] to support of his application.



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provided no argument or evidence in support of the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted with a waiver for offenses of juvenile delinquency, truancy and incorrigibility.  He entered active duty on 28 August 1967 and never completed training.

2.  A 13 December 1967 SPCM convicted him of failure to obey a lawful order and disrespect towards superior ranking noncommissioned officers (NCOs) and sentenced him to confinement for 3 months and forfeiture of $60 pay per month for 3 months.  The findings and sentence were approved on 5 January 1968.

3.  Another SPCM found him guilty of and sentenced him for absence without leave (AWOL) from his unit for less than 24 hours on 28 and 29 February 1968, disrespect towards an NCO, violation of a lawful regulation, and assault by striking a staff sergeant.  On 16 April 1968 the convening authority disapproved the findings and sentence because the defense counsel had not been sworn.  

4.  On 11 July 1968 a general court-martial convicted him in accordance with his pleas of AWOL for less than 24 hours on 28 and 29 February 1968, two specifications of larceny, two specifications of extortion, and AWOL from 21 to 23 April 1968.  He was sentenced to confinement for 10 months, reduction to pay grade E-1, forfeiture of all pay and allowances and a bad conduct discharge.

5.  The convening authority approved the findings and sentence and, except for the bad conduct discharge which was suspended pending review and possible appeal, ordered the sentence executed.

6.  On 6 March 1969 the applicant was returned to duty with pay pending completion of appellate review.

7.  The U.S. Army Board of Review, on 1 April 1969:

   a.  found no error in not trying the applicant for all known offenses, including offenses committed only two days before the trial; 
   
   b.  there was no error in joining minor offenses (the short AWOLs) and serious charges (the larceny and extortion), even though they were unrelated;
   
   c.  there was no error in rehearing the charges from the previously disapproved SPCM;
   
   d.  there was no error in the staff judge advocate's failing to inform the convening authority that the applicant's commanding officer recommended he not be discharged; and 
   
   e.  assuming there was a judicial order for a psychiatric examination and that this was not done, defense counsel's failure to object obviated any error.
   
8.  The Board of Review also considered the appellate defense counsel's questioning the appropriateness of the sentence and noted that, following the completion of confinement, the applicant had been restored to duty and received pay and allowances commencing on 6 March 1969 and found nothing prejudicial therein.  The findings of guilty and the sentence were affirmed.

9.  In an 18 April 1969 letter to the Commanding General, Fort Meade, Maryland; 
The Judge Advocate General requested that a supplemental order discharging the applicant be issued upon a request for final action by the accused or upon the expiration of a 30-day period in which he could file an appeal.

10.  However that notice did grant him the opportunity to still file a petition for review within 30 days.  The record contains no evidence he filed a petition for review with the Court of Military Appeals.  On 22 April 1969 the applicant consulted with counsel and signed a statement to the effect that he did not desire to petition for appeal and that final action was requested.  

11.  On 1 May 1969, the appeals process having been completed, the bad conduct discharge was ordered executed on 8 May 1969.

12.  The applicant's DD Form 214 (Report of Transfer or Discharge) shows that, of the 20 months and 11 days the applicant was in the Army, only 7 months and 29 days were creditable service.

13.  In support of his current application the applicant submitted:

	a.  his contentions as stated above in the Applicant States section; and 

   b. the following enclosures [using his numbering system to aide in identification]:
   
      (1)  letter from his recently assigned appellate defense counsel, dated 4 January 2010;
   (2)  letter from his recently assigned appellate defense counsel, dated
28 August 2009, with attached Supplement to Petition for Grant of Review
and Appendix A; the original Board of Review decision [10 pages], dated 1 April 1969, and Appendix B, recently developed appellate issues derived by communication between the appellate defense counsel and the applicant;

		(3).  letter from appellate defense counsel, dated 21 November 2009, informing applicant that the Court of Appeals for the Armed Forces had denied his petition for appeal; 
   
   (4)  Staff Jude Advocate review dated 28 August 1968
   
   (5)  Charge sheet dated 30 April 1968;
   
   (6)  5th Endorsement on general court-martial charges dated 16 May 1968
   
      (7)  page 6 of the record of trial in which the assistant defense counsel is arguing about how long the applicant had been confined;
   
      (8)  order directing the applicant's confinement at the United States Disciplinary Barracks (USDB) , Fort Leavenworth, Kansas;
   
   (9)  16 April 1968 SPCM order with disapproval of findings and sentence
   
      (10)  the General Court Martial Order showing the conviction and sentence;
   
   (11)  memorandum providing 30 day notification to file an appeal;
   
      (12)  applicant's 22 April 1969 acknowledgement of 30 days notification to file appeal or request finalization of the discharge without delay;
   
   (13)  prisoner assignment change notices at the (USDB);
   
   	(14)  letter from the Provost Marshall General to the Commandant, USDB following a letter from the applicant to the President
   
      (15)  special orders, dated 25 February 1969 showing the applicant's release from confinement;
   
      (16)  general court-martial order restoring applicant to duty with pay pending execution of the discharge;
   
      (17)  DA Form 268 (Flagging Action) reporting the applicant's transfer to Fort Meade, Maryland;
   
   (18)  assignment orders dated 13 March 1968
   
   (19)  re-assignment orders dated 1 April 1969.

14.  The recent appeal to the Court of Appeals for the Armed Forces included an 
Appendix B of recently developed appellate issues derived by communication between the appellate defense counsel and the applicant.  These consisted of:

	a.  the assertion that the military lawyer with whom he consulted with on 22 April 1969 had him, "quickly sign a document" and that he "did not know he was waiving any rights and would not have signed it if he had"; and 

	b.  that the Department of Veteran Affairs (VA) had denied him claims based upon the assault charge even though that had been dismissed.

15.  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 states the sentenced confinement was too long, he should have received credit for the time on restriction, he was denied his right of appeal, he was never properly discharged, the SPCM time should have reduced his ultimate confinement time and his assigned appellate counsel failed to file the proper documents thereby depriving him of his right of effective appeal.

2.  The document the applicant identifies as Appendix B clearly shows that with the recently granted chance to petition for review he had the opportunity to develop substantive issues.  However, the only things offered were that he did not understand what he was signing in 1969 and that the VA was basing a decision upon a dismissed charge.  Given this circumstance, applicant's faulting the efforts of his behalf ring hollow.


3.  The evidence or record clearly shows that, on 22 April 1969, the applicant consulted with counsel and determined that he did not wish to file an appeal and asked for action on his discharge.   The fact that some 40 years later he was given another chance to appeal does not demonstrate that he was not properly discharged.

4.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

5.  Nevertheless, in 2009, the Court of Appeals for the Armed Forces allowed him to submit a petition for review.  The court's 3 November 2009 denial of his petition reflects the fact that no material error of law occurred in his case.  Even accepting the applicant's ideas, any alleged delay or error in his case was harmless.

6.  The applicant's contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for re-characterization of the discharge or to give him additional credit for time served.

7.  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 were therefore 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)                                         AR20100023714





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ABCMR Record of Proceedings (cont)                                         AR20100023714



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