IN THE CASE OF:  

		BOARD DATE:  24 September 2013

		DOCKET NUMBER:  AR20130003471


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 upgrade of his dishonorable discharge.

2.  The applicant states his defense attorney erred during his court-martial trial.  He states his attorney interviewed several fellow Soldiers and knew he had consumed alcohol and marijuana prior to guard duty; however, he withheld that information from the jury.  He states this important evidence would have changed the outcome of his trial.  

3.  The applicant provides no additional evidence 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.  The applicant enlisted in the Regular Army on 25 January 1978.  He entered active duty at Fort Leonard Wood, MO, where he completed basic training.

3.  On or about 24 March 1978, after completing basic training, he was assigned to Company A, 5th Battalion (Combat Support), 4th Advanced Individual Training (AIT) Brigade (Engineer), Fort Leonard Wood, MO, for the purpose of completing AIT in military occupational specialty (MOS) 64C (Motor Transport Operator).  

4.  On 14 July 1978, before a general court-martial at Fort Leonard Wood, MO, he was found guilty of one specification of Charge 1, for violating Article 118 of the Uniform Code of Military Justice (UCMJ) by committing unpremeditated murder, and 2 specifications of an Additional Charge for violating Article 80 of the UCMJ by attempting to murder 2 other Soldiers.  The Court sentenced him to be reduced to the rank/grade of private (PV1)/E-1, to be confined at hard labor for 30 years, to forfeit all pay and allowances, and to be dishonorably discharged.

5.  On 29 September 1978, the convening authority approved the sentence and, except for the dishonorable discharge, ordered it executed.  He ordered the applicant to confinement at the United States Disciplinary Barracks, Fort Leavenworth, KS, and he forwarded the record of trial to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

6.  On 14 February 1979, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  On 7 March 1979, the applicant was advised of the decision by the U.S. Army Court of Military Review.  He was further advised he had 30 days in which to petition the U.S. Court of Military Appeals for a grant of review.

8.  On an unknown date in 1985, the U.S. Court of Military Appeals denied the applicant's petition for review.

9.  General Court-Martial Order Number 291, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 13 June 1979, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered his dishonorable discharge executed.

10.  On 17 October 1979, he was discharged in accordance with the directives of General Court-Martial Order Number 291.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was dishonorably discharged as a result of court-martial.  The highest rank/grade he attained during his period of active duty was private (PV2)/E-2.

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) establishes the policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons.

   a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   b. 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.

   c. Paragraph 11-1, in effect at the time, provided that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed.  

12.  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 contends his defense attorney erred during his court-martial trial, yet he offers no evidence to support his contention.  Further, his contentions should have been raised during the appellate review.

2.  The evidence of record shows he was given a dishonorable discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  
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.

4.  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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20130003471



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