BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120004686 


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.

2.  The applicant states Colonel C----y came to him before the court-martial and told him he was going to see he got 15 years and a dishonorable discharge.  He further states he was tried by an all-white court and he was the only black and he was in Leavenworth the very next day.  He claims racism in the Army at the time.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a Standard Form 180 (Request Pertaining to Military Records) in support of his request.

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.  After prior active service from 23 September 1955 through 21 September 1957, he enlisted in the Regular Army on 3 November 1965 and began the period of enlistment under review.  The record shows he entered this period of active service in the rank/grade of private (PV2)/E-2.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was assigned to Fort Knox, KY to attend basic combat training and he arrived there for duty on 16 November 1965.

4.  On 28 December 1965, the applicant departed absent without leave (AWOL) from his training unit.  He was dropped from the rolls (DFR) of his unit on
26 January 1966, and he remained away for 167 days until returning to military control at Fort Leonard Wood, MO on 13 June 1966.

5.  The record shows the applicant was in confinement at Fort Leonard Wood when he again departed AWOL on 11 August 1966.  He remained away for 
113 days until returning to military control at Fort Carson, CO on 8 December 1966.  

6.  On 28 December 1966, a special court-martial (SPCM) found the applicant guilty, pursuant to his pleas, of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 18 August 1966 through on or about 9 December 1966.  The resulting approved sentence included confinement at hard labor for 6 months.  He was subsequently confined at the Fort Carson Post Stockade.

7.  On 1 March 1967, a general court-martial (GCM) found the applicant guilty, contrary to his pleas, of violating the following articles of the UCMJ:

	a.  Article 134:

* on or about 6 January 1967, by assaulting a sergeant, a person in the execution of military police duties, with the intent to commit murder
* on or about 6 January 1967, by wrongfully communicating to a sergeant, a person in the execution of military police duties, a threat to kill him
* on or about 23 December 1966, by wrongfully communicating to a specialist four, a prisoner guard, a threat to take his weapon from him and beat him with it

	b.  Article 90, on or about 6 January 1967, by lifting a weapon, a broken broom stick, against a Lieutenant Colonel C----y, a superior commissioned officer in the execution of his duties;
	c.  Article 92, on or about 23 December 1966, by failing to obey a lawful order issued by a specialist four, who was then performing duties as a guard at the Fort Carson Post Stockade; and

	d.  Article 85, on or about 28 December 1965, by being AWOL from his basic combat training unit with the intent to remain away permanently, and remaining so absent in a desertion status until on or about 12 June 1966.

8.  He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 15 years.

9.  By GCM Order Number 12, issued by Headquarters, Fort Carson, Colorado, dated 12 April 1967, the GCM convening authority approved only so much of the sentence that provided for a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 10 years.  The record of trial was directed to be forwarded to The Judge Advocate General of the Army for review by a board of review.

10.  On 2 November 1967, the Board of Review, U.S. Army, found the findings of guilty and sentence as approved by proper authority correct in law and as a result, they were affirmed.

11.  On 29 January 1969, the U.S. Court of Military Appeals denied the applicant's petition for a grant of review.

12.  GCM Order Number 153, issued by Headquarters, Fort Leavenworth, KS, dated 7 February 1968, directed that Article 71c having been complied with, the sentence be duly executed.

13.  On 19 February 1968, the applicant was dishonorably discharged under the provisions of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge) by reason of court-martial with a dishonorable discharge.  The DD Form 214 he was issued at the time shows he completed a total of 2 years and 3 months of creditable active service with 280 days of time lost due to AWOL and confinement.

14.  Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with a dishonorable or a bad conduct discharge.

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's contention that he was discriminated against based on his race and his DD Form 214 should be upgraded as a result has been carefully considered.  However, while every allegation of racial discrimination is taken seriously by this Board, there is no evidence of record or independent evidence provided by the applicant that supports his assertion of discrimination.  As a result, there is insufficient evidence to support this claim.

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.  Based on the gravity of the offenses resulting in his court-martial conviction and dishonorable discharge, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his discharge.

4.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general 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)                                         AR20120004686



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ABCMR Record of Proceedings (cont)                                         AR20120004686



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