IN THE CASE OF:	  

		BOARD DATE:	 2 January 2014 

		DOCKET NUMBER:  AR20130006708 


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:

* correction of his DA Form 20B (Insert Sheet to DA Form 20 - Enlisted Qualification Record - Record of Court-Martial Conviction) to show he did not strike a German National and/or he was not drunk and disorderly in 1967
* reinstatement of his rank/grade of specialist five (SP5)/E-5

2.  The applicant states he was convicted by a court-martial of striking a German National and being drunk and disorderly.  His DA Form 20B stated that.  However, he did not strike him.  Another GI (service member) by the name of Risen did it.  He was also drunk and disorderly.  He (Risen) was sentenced to life in a Leavenworth prison while he (applicant) was not.  He was ultimately honorably discharged and he now wants this Board to set the record straight. 

3.  The applicant provides his DA Form 20B and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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's records show he was inducted into the Army of the United States on 9 November 1965 and he held military occupational specialty 63C (General Vehicle Repairman). 

3.  He served in Germany from 2 June 1966 to on or about 15 November 1967.  He was promoted to specialist four (SP4)/E-4 on 31 October 1966 by authority of Special Orders Number 304, issued by Headquarters, 24th Infantry Division. 

4.  The complete facts and circumstances surrounding his special court-martial are not available for review with this case.  However, his records contain a DA Form 20B that shows he was convicted by a special court-martial on 21 July 1967 of one or more specifications of striking a German National and being drunk and disorderly.  

5.  The court sentenced him to a reduction to the lowest enlisted grade, confinement at hard labor for 4 months (suspension of 1 month for a period of 
6 months), and forfeiture of $40.00 pay per month for 4 months.  The convening authority approved his sentence on 21 July 1967.  

6.  Special Court-Martial Orders Number 19, issued by Headquarters, 1st Battalion, 35th Artillery, reduced him to the rank/grade of private (PV1)/E-1 effective 21 July 1967.  

7.  His records do not contain orders promoting or appointing him to SP5/E-5.  Likewise, his records do not contain orders promoting him above the grade of PV1/E-1 subsequent to his court-martial reduction. 

8.  He was honorably released from active duty on 17 November 1967.  His 
DD Form 214 shows he completed 1 year, 11 months, and 11 days of active service and he had 27 days of lost time from 21 July through 16 August 1967.  His DD Form 214 also shows in:

* Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) - PV1 and E-1
* Item 6 (Date of Rank) - 21 July 1967

9.  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.

10.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It states items 5a and 5b will show the active duty rank and pay grade at the time of the Soldier's separation.  The rank is taken from the Soldier’s promotion/reduction orders and item 6 shows the date of rank.

11.  Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time, prescribed the enlisted personnel management system.  Chapter 9 governed the preparation of the DA Form 20.  The DA Form 20B is an insert to the DA Form 20.  The DA Form 20B was used to record court-martial convictions.  When initiated, the DA Form 20B will be initiated by the custodian of the individual's personnel records upon receipt of a summary court-martial record, special court-martial orders, or general court-martial orders.  Entries will not be made when the trial results in acquittal of all charges or when all the findings and sentence are disapproved by the convening authority.  The insert, when initiated, is a permanent part of the basic record, and will be retained with the DA Form 20.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of record shows the applicant was convicted by a special court-martial on 21 July 1967 of one or more specifications of striking another individual and being drunk and disorderly.  As required by the applicable regulation at the time, this conviction was recorded on the DA Form 20B and became a permanent part of the applicant's records.  

2.  The Board is not an investigative agency and does not reexamine the issues of innocence or guilt adjudged by a court-martial.  This is done by the convening authority and the appellate process.  By law, any redress by this Board of the finality of a court-martial conviction 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.

3.  The applicant's records do not contain and he did not provide orders showing he was recommended for, promoted, or appointed to the rank/grade of SP5/E-5.  Furthermore, the court sentenced the applicant to a reduction to the lowest enlisted grade on 21 July 1967.  There is no evidence he was promoted to a rank/grade higher than PV1/E-1 between the date he was reduced and the date he was released from active duty.  His DD Form 214 correctly shows his rank/grade, and date of rank. 

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)                                         AR20130006708





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ABCMR Record of Proceedings (cont)                                         AR20130006708



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