IN THE CASE OF:	   

		BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140006234 


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 his discharge be upgraded.

2.  The applicant states, in effect, he was totally innocent of the charge for which he was convicted.

3.  The applicant provides:

* self-authored statement
* obituary notice
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Army Review Boards Agency letter
* DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States
* National Personnel Records Center letter

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 18 August 1961.  He completed initial training and was awarded military occupational specialty of 630.00 (Automotive Maintenance Helper).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  Records show no disciplinary or adverse information until the applicant was held by French authorities, on 5 November 1962.  The applicant was convicted by a French Tribunal for attempted larceny and sentenced to 10 months in confinement plus court costs on 14 December 1962.

4.  On 26 July 1963, the applicant pled guilty and was convicted by a general court-martial of one specification of violating Article 122 of the Uniform Code of Military Justice (UCMJ), in that the applicant, acting jointly and by means of force and violence, stole a wallet belonging to a French national containing French and United States currency of a total value of $22.

5.  General Court-Martial Order Number 26, issued by Headquarters, 4th Logistical Command, dated 28 August 1963, shows the applicant received the following sentence:  a bad conduct discharge, a forfeiture of all pay and allowances, confinement at hard labor for 8 months, and reduction to the lowest enlisted grade.

6.  On 17 October 1963, the applicant was transferred to Headquarters, First United States Army at Governors Island, New York City, New York, pending appellate review.  The Office of the Judge Advocate General completed its review on 27 November 1963 and affirmed both the findings and sentence.

7.  General Court-Martial Order Number 181, issued by Headquarters,
First United States Army, Governors Island, New York City, New York, dated 
27 November 1963, shows the sentence, as ordered by General Court-Martial Order Number 26, issued by Headquarters, 4th Logistical Command, dated 
28 August 1963, was ordered duly executed.

8.  On 27 November 1963, he was discharged accordingly.  The DD Form 214 shows he was discharged under the provisions of Army Regulation 635-204 (Personnel Separation - Dishonorable and Bad-Conduct Discharge), separation program number (SPN) 292 (discharge for other than by reason of desertion) as 

a result of court-martial with a bad conduct discharge.  He completed 1 year, 
2 months, and 20 days of net active service during this period of enlistment.

9.  In his self-authored statement, the applicant states his contentions, which are in effect:

* the events that led to his bad conduct discharge took place during his first tour of duty in the Army while stationed as a mechanic with a military police unit in France
* a member of his unit, someone he had never met before, invited him to a local bar for a beer
* while at the bar, the other service member got into a fight with a French national
* the applicant grabbed his fellow Soldier and left the area
* while driving back to the unit, the another service member said he had taken the French national's wallet
* they were both arrested by French authorities and held in the Bastille
* after being released by the French, he and his codefendant were court-martialed and sent to New York, after which they were discharged
* his intent is to set the record straight

10.  The applicant provides a copy of an obituary and death notice regarding his codefendant.  He notes he never saw his codefendant after they left New York.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	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 3-10 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence 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's request for an upgrade of his discharge was carefully considered.  Although being tried and convicted for the same offense in two venues could be viewed as harsh, considering the crime, there was insufficient evidence to support his request.  

2.  Neither the transcripts of the French Tribunal nor the general court-martial are available for review; but rather than presenting evidence of his innocence, the applicant pled guilty at the general court-martial.  Additionally, other than his self-authored statement, the applicant provides no other evidence regarding the events that led to his bad conduct discharge, or of how he has conducted himself since his conviction.

3.  The applicant was given a bad conduct discharge pursuant to an approved sentence by a general court-martial that was warranted by the gravity of the offense charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

4.  All requirements of law and regulation were met and his rights were fully protected.  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.  






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)                                         AR20140006234



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ABCMR Record of Proceedings (cont)                                         AR20140006234



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