`	IN THE CASE OF:	  

		BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110001198 


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, his general court-martial be expunged from his record and upgrade of his dismissal from the Army.

2.  He states the court-martial sentence created false felonies that prevent him from obtaining employment as an educated man with a Bachelor of Science, Masters of Art, and a Masters of Science.  He was incorrectly accused of selling his own privately owned vehicle (POV) with no written documentation of any sale.  He states the unchanged military orders that were issued were referred to as “falsification of documents” and his true signature was called a “forgery.”

3.  He provides a 6-page self-authored statement that expands on his assertion that he was wrongfully convicted and a Second Judicial District Court, County of Bernalillo, State of New Mexico, Clerk’s Certificate.

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 attended the U.S. Military Academy at West Point, NY as a cadet from 3 July 1972 to 1 June 1976.  He graduated on 2 June 1976 and he was appointed as a second lieutenant (2LT)/O-1 in the Regular Army.  He was promoted to first lieutenant (1LT)/O-2 on 2 June 1978.  He was assigned to Battery B, 3rd Battalion, 84th Field Artillery in Germany on 15 June 1979.

3.  On 19 March 1981, he was convicted by a general court-martial, contrary to his pleas, of:

	a.  signing a false official document with intent to deceive;

	b.  stealing a 1977 Chevrolet Corvette, of a value of about $8,000.00 in lawful U.S. currency, the property of a specialist four (SP4)/E-4;

	c.  violating Title 18, U.S. Code, section 2312, by causing a 1977 Chevrolet Corvette to be transported in foreign commerce from Bremerhaven, Germany to Oakland, CA, a motor vehicle he knew to be stolen;

	d.  willfully and unlawfully altering a public record by changing the date of Department of the Army (DA) orders for movement of dependents, household goods, and a POV from 12 October 1979 to 12 May 1980;

	e.  signing and using official documents with intent to deceive, in order to ship a 1977 Chevrolet Corvette at the U.S. government expense, he then knowing that he was not the lawful owner of the said vehicle and had no authority to use U.S. government transportation facilities; which under the circumstances, the act constituted conduct unbecoming an officer and a gentleman;

	f.  stealing a 1977 Chevrolet Corvette, of a value of about $8,000.00 in lawful U.S. currency, the property of an SP4; which under the circumstances, the act constituted conduct unbecoming an officer and a gentleman;

	g.  willfully and unlawfully altering a public record by changing the date of
Department of the Army orders from 12 October 1979 to 12 May 1980 with the intent to ship a 1977 Chevrolet Corvette at government expense knowing he was 


not the lawful owner of the said vehicle, which under the circumstances, the act constituted conduct unbecoming an officer and a gentleman; and

	h.  violating Title, U.S. Code, section 2312, by causing a 1977 Chevrolet Corvette to be transported from Bremerhaven, Germany to Oakland, CA, a motor vehicle he knew to be stolen and under the circumstances, the act constituted conduct unbecoming an officer and a gentleman.

4.  He was sentenced to a forfeiture of $1,200.00 pay for 72 months, confinement at hard labor for 6 years, and to be dismissed from the service.  The convening authority approved the sentence.  The forfeitures were applied to pay becoming due on and after the date of this action.  The Record of Trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  The applicant would be confined in the U.S. Disciplinary Barracks, Fort Leavenworth, KS, or elsewhere as competent authority would direct.

5.  On 19 November 1982, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On an unknown date, the applicant submitted a petition to the U.S. Court of Military Appeals for a grant of review.  His petition was denied.

7.  The sentence as affirmed by the U.S. Army Court of Military Review was approved and ordered duly executed by the Assistant Secretary of the Army (Manpower and Reserve Affairs).

8.  On 24 August 1983, the U.S. Army Chief of Staff directed that the applicant would cease to be an officer of the U.S. Army at midnight on 15 November 1983, pursuant to the Order of the Secretary of the Army.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was dismissed from the service on 15 November 1983 under the provisions of Army Regulation 635-120 (Personnel Separations - Officer Resignation and Discharges) as a result of court-martial, other.  He had completed 11 years, 8 months, and 9 days of active military service with no days of lost time.  Item 26 (Separation Code) of his DD Form 214 shows the entry "PJD."

10.  He submitted a 6-page self-authored statement and described the incidents which led to his conviction by a general court-martial.  He stated he would like to appeal a major injustice that was committed against him as a U.S. Army commissioned officer from 2 June 1976 to March 1984.  He argued that:

* he applied and received military orders for transport of a military dependent (his wife) and to ship a POV (1977 Corvette) to the United States
* the vehicle was paid for and he had the car title and registration
* he was asked by an enlisted man to sell his Corvette to him for $5,000.00 cash, but he refused and the enlisted man left angry and took his cash with him
* there were no documents of a car sale, i.e., bill of sale or transfer of title presented in the court-martial
* he shipped the vehicle to his wife from Germany to the United States in the winter of 1979
* he was found guilty by an all white ROTC-based board of Army officers for allegedly selling his 1977 Corvette to a Caucasian enlisted man with no bill of sale, stealing it back, and shipping it to the United States

11.  The applicant also argued that the wrong decision was made by the court-martial in Germany.  He was removed from confinement and placed in a building with no bars, locks, or cells.  He was also placed in minimum custody with no correctional supervision while working and he was given a job as a civil service indoor painter for military homes at Fort Leavenworth.  He continued to receive pay as an officer in the Army.  Further, he argued that there was no victim and the Corvette was returned and given to the enlisted man by the U.S. Army while he was at Fort Leavenworth.

12.  On 2 September 2008, the Clerk of the Second Judicial District Court, County of Bernalillo, State of New Mexico conducted a search of criminal court records for felony criminal records from 1979 through the present in that court and had been unable to locate any.  

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 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that the SPD code "PJD" is the 


appropriate code to assign to Soldiers who are dropped from the rolls of the Army and dismissed as a result of court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial on 19 March 1981 of eight offenses involving signing a false official document, stealing a POV, transporting a stolen POV, altering a public record, and signing and using official documents to ship a POV to the United States knowing he was not the lawful owner.

2.  The applicant contends that the court-martial sentence created false felonies that prevent him from obtaining employment.  However, the evidence of record does not indicate that an injustice or error exists in this case.  Additionally, being disadvantaged for employment is not sufficiently mitigating to warrant relief in this case.

3.  He contends that he was incorrectly accused of selling his own vehicle with no written documentation of any sale.  However, his service record is void of evidence and he has not provided sufficient evidence which supports his claim and the court-martial found otherwise.

4.  His trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and his dismissal appropriately characterizes the misconduct for which he was convicted.

5.  The general court-martial order is properly filed in the applicant's military records in accordance with the governing regulation.  There is no evidence that it was improperly imposed.  

6.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20110001198



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ABCMR Record of Proceedings (cont)                                         AR20110001198



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