IN THE CASE OF:	  

		BOARD DATE:	  21 February 2012

		DOCKET NUMBER:  AR20110016599 


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, an upgrade of his dishonorable discharge (DD).  

2.  The applicant states his discharge should be upgraded based on erroneous testimony at his trial.  He claims he is not guilty of the charge and that he does not believe he received a fair trial or representation.  

3.  The applicant provides no documentary evidence 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 record shows after serving in the Army National Guard (ARNG) from March through September 1963, and being trained in military occupational specialty (MOS) 67A (Aircraft Maintenance), he was inducted into the Army of the United States on 7 February 1964, and was awarded MOS 13A (Cannoneer) on 16 February 1965.  He served for 1 year, 11 months, and 3 days until being honorably discharged for the purpose of immediate enlistment in the Regular Army (RA) on 9 January 1966.  On 10 January 1966, he enlisted in the RA for 
6 years. 

3.  The record shows the applicant served overseas in Germany from 20 March 1964 through 2 February 1966, and in the Republic of Vietnam (RVN) from 
24 January 1967 through 23 January 1968.  It further shows he was first advanced to private first class/E-3 on 7 April 1964, and again attained that grade subsequent to reductions in grade for cause on 5 April 1965 and 3 November 1965.  It also shows he was reduced to private/E-2 for cause on 26 February 1965, 1 May 1965, and 20 April 1966; and was reduced to private/E-1 for cause on 11 June 1965 and 22 September 1966.  His record documents no acts of valor or significant achievement.  

4.  The applicant’s disciplinary history includes a Special Court Martial (SPCM) conviction on 14 September 1966, and his acceptance of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on five separate occasions between 14 October 1964 and 22 April 1966.

5.  On 9 October 1968, a General Court-Martial (GCM) found the applicant guilty, contrary to his pleas, of violating Article 118 of the UCMJ by murdering another Soldier in the RVN on or about 1 February 1967; and of three specifications of violating Article 128 of the UCMJ by assaulting three Soldiers in the RVN on or about 1 February 1967.  The resulting sentence was a reduction to private/E-1, a DD, forfeiture of all pay and allowances, and confinement at hard labor for 
20 years.

6.  GCM Order Number 11, Headquarters, Fort Leavenworth, Kansas, dated 
6 March 1969, shows the convening authority approved only so much of the sentence adjudged on 9 October 1968 that provided for a DD, forfeiture of all pay and allowances, confinement at hard labor for 19 years and 7 months, and reduction to private/E-1.  

7.  On 15 January 1971, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, GCM Order Number 59 directed that Article 71c having been complied with, that the applicant’s sentence be duly executed.



8.  On 8 February 1971, applicant was discharged by reason of court-martial with a DD under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations).  The DD Form 214 he was issued shows he completed a total of 3 years, 2 months, and 5 days of creditable active military service and accrued 1,553 days of time lost due to AWOL and confinement.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the version of regulation in effect at the time prescribed the policies and procedures for separating members with a DD or Bad Conduct Discharge (BCD).  It stipulated that a Soldier would be given a DD pursuant only to an approved sentence of a GCM and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

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 applicant’s request that his DD discharge be upgraded because he is innocent and erroneous testimony was given at his trial has been carefully considered.  However, there is no evidence of record corroborating these assertions.  

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.

3.  Further, the record confirms an extensive disciplinary history including a SPCM conviction and his acceptance of NJP on five separate occasions prior to the court-martial that resulted in his DD.  Further, based on this disciplinary history and the gravity of the offenses resulting in his court-martial conviction and DD, absent any evidence supporting his assertion of innocence, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his discharge.


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)                                         AR20110016599



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ABCMR Record of Proceedings (cont)                                         AR20110016599



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