IN THE CASE OF:	  

		BOARD DATE:	 6 February 2014
 
		DOCKET NUMBER:  AR20130009736 


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 bad conduct discharge (BCD) to a general discharge.

2.  The applicant states his discharge was in error and/or unjust based on "random jury of private and above" and "any and all reasons listed in appeals by [his] attorney."  He states that he loaned a Soldier (a private) $500.00 in order for him to be able to pay for his wife to travel to be with him (the Soldier).  He adds that his attorney took the Soldier to a local bank to withdraw the money that he loaned the Soldier.

3.  The applicant provides no additional 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 applicant enlisted in the Regular Army on 10 August 1971 for a period of 3 years.  He was awarded military occupational specialty 19E (M48-M60A1/A3 Armor Crewman).

3.  The applicant accepted nonjudicial punishment (NJP) on six occasions for acts of indiscipline during the period 25 September 1971 to 19 March 1974.

4.  In August 1973, the applicant was convicted at a special court-martial.  He was sentenced to confinement at hard labor for 3 months, a forfeiture of $175.00 pay for 3 months, and reduction to the rank of private/E-1.

5.  In July 1974, the applicant was convicted at a special court-martial of:

* behaving himself with disrespect toward a commissioned officer
* being disrespectful in language toward a noncommissioned officer
* with intent to unlawfully obtain $500.00, communicating a threat to kill a Soldier
* committing an assault upon the Soldier by tying him up and attempting to strangle him with a means likely to produce grievous bodily harm

6.  The applicant was sentenced to be reduced to the grade of E-1, confinement at hard labor for 2 months, a forfeiture of $150.00 pay for 2 months, and a BCD.  The sentence was approved on 30 August 1974.

7.  The applicant's case was reviewed by three appellate military judges of the U.S. Army Court of Military Review (CMR) on 30 December 1975.  The single question presented for discussion was whether the randomly selected court from which enlisted men in the rank of private (E-1 and E-2) were excluded was properly constituted.

   a.  The CMR noted the U.S. Court of Military Appeals (CMA) long held that the deliberate systematic exclusion of qualified persons on the basis of rank alone is contrary to Article 25 of the Uniform Code of Military Justice (UCMJ).

   b.  The CMR examined the exclusionary basis by first looking at the prior rank-based exclusions that had been held impermissible.  Recognizing that the important question is the relationship between the standards used for selection of the court members and the statutory basis for eligibility, the CMA had given the
following guidance:  "A method of selection which uses criteria reasonably and rationally calculated to obtain jurors meeting the statutory requirements for service is proper."

   c.  The CMR observed that although some privates will be qualified for one or two of the statutory standards, they will invariably be disqualified on a majority of the criteria.  Further, as privates are at the very bottom of the promotion ladder, they are also likely to be excluded by the provisions of Article 25d(1), UCMJ, which states:  "When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade."

   d.  The CMR noted that the use of rank in this situation as an exclusionary device is nothing more than recognition that privates do not meet the statutory qualifications and are not senior to any other Soldiers.

   e.  The CMR found that the disqualification of persons in the grade of private was reasonably and rationally calculated to obtain jurors meeting the statutory requirements of Article 25, UCMJ.

   f.  On 30 December 1975, the CMR affirmed the findings of guilty and the sentence.

8.  On 20 January 1976, the applicant petitioned the CMA for grant of review of the decision of the CMR.  He further requested "that his appellate counsel assign any errors of law he deems advisable."

9.  On 19 October 1976, the CMA affirmed the decision of the CMR.

10.  Headquarters, 1st Infantry Division, Fort Riley, KS, Special Court-Martial Order Number 36, dated 17 August 1979, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.  (The portion of the sentence pertaining to confinement had been served.)

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions on 12 October 1979 as a result of court-martial (other).  He completed 7 years, 
10 months, and 15 days of net active service this period that included 1,830 days of excess leave from 9 October 1974 through 12 October 1979.



12.  The applicant submitted an application to the Army Discharge Review Board (ADRB) requesting upgrade of his discharge.  On 28 July 1988, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request for upgrade of his discharge was denied.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, 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.

14.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 that his BCD should be upgraded because it was in error and unjust based on the exclusion of Soldiers in the rank of private from the jury and all the reasons that were raised in his appeal.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the applicant's appeal.

3.  Records show the issues the applicant submits to this Board were considered by the CMR and/or the CMA.  In both instances, the respective Court affirmed the applicant's conviction and the approved sentence.  In addition, the ADRB determined that the applicant's discharge was proper and equitable.

4.  The applicant offers no new evidence in support of his application to this Board.

5.  The evidence of record shows the applicant received NJP on six occasions and he was twice tried and convicted at two special courts-martial.  This period of military service, during which the applicant committed and was convicted of serious offenses, does not demonstrate and cannot be categorized as under honorable conditions.
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.  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 request.

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)                                         AR20130009736



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ABCMR Record of Proceedings (cont)                                         AR20130009736



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