IN THE CASE OF:	   

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007186 


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 to a general discharge.

2.  The applicant states he believes the record is unjust because he acted out of fear due to racial discrimination and/or harassment.  After he was released from prison, he stayed drunk or high.  He is sober now.

3.  The applicant provides copies of the following:

* General Court-Martial (GCM) Order Number 24
* U.S. Army Board of Review Decision
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Readjustment Counseling Service (RCS) Client Information Report

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

provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant was inducted into the Army of the United States on 9 June 1964, with a waiver for civil offense(s).  He was awarded military occupational specialty 51A (supply handler).

3.  On 2 November 1964, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for stealing the property of another Soldier.

4.  He served:

* on Okinawa from 4 November 1964 through 12 May 1965
* in Vietnam from 13 May 1965 through 28 March 1966

5.  He was advanced to pay grade E-3 on 8 March 1965.

6.  He accepted NJP under Article 15, UCMJ, on/for:

   a.  25 May 1965 – committing disorderly conduct by fighting in the Charm Restaurant in Koza.  

   b.  13 July 1965 – being disrespectful in language toward his superior noncommissioned officer on 6 July 1965.  

7.  On 28 March 1966, he was convicted by a GCM of one specification each of the following offenses:

* behaving himself with disrespect towards his superior officer on 18 February 1966
* striking his superior officer in the face with his fists on 18 February 1966
* striking another superior officer in the face with his fists on 18 February 1966
* unlawfully striking a Soldier in the face with his fists on 18 February 1966
* wrongfully communicating to his superior officer a threat to kill him on 18 February 1966
* assaulting his superior officer by knocking the said officer to the floor on 19 February 1966

8.  He was sentenced to a forfeiture of all pay and allowances, confinement at hard labor for 20 years, a dishonorable discharge, and reduction to pay grade   E-1.

9.  On 21 May 1966, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, a total forfeiture of pay and allowances, confinement at hard labor for 3 years, and reduction to pay grade   E-1.  The record of trial was forwarded to the U.S. Army Board of Review and he was placed in confinement.

10.  On 28 February 1967, the U.S. Army Board of Review, Office of The Judge Advocate General, affirmed the findings of guilty and approved the modified sentence of confinement at hard labor to 2 years.

11.  There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case.

12.  Headquarters, Fort Leavenworth, KS, GCM Order Number 145, dated 12 June 1967, shows after that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge duly executed.

13.  Accordingly, he was discharged in pay grade E-1 on 26 June 1967, under the provisions of Army Regulation 635-204 (Dishonorable and Bad Conduct Discharges), as a result of a court-martial.  He was credited with completing 1 year, 8 months, and 12 days of active service with 491 days of time lost.  His service was characterized as dishonorable.

14.  He provided a copy of a RCS Client Information Report, dated 20 June 2013, which shows he was seeking an assessment for post-traumatic stress disorder.

15.  Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges.  Paragraph 1b of this regulation stated that an enlisted person would be discharged with a dishonorable discharge pursuant only to an approved sentence of GCM or a special court-martial imposing a dishonorable discharge.

16.  Army Regulation 635-200, in effect at time, stated in paragraph 3-7b that a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

17.  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 change a court-martial 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 evidence of record shows the applicant was convicted by a GCM of several serious offenses and was sentenced to a dishonorable discharge.  His discharge was affirmed and he was discharged accordingly on 26 June 1967.

2.  He provided no evidence to show his discharge was unjust or a direct result of his fear due to racial discrimination harassment.  There is no error or injustice apparent in his record.  There is also no evidence his GCM was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.  

3.  Trial by court-martial was warranted by the offenses changed.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

4.  Any redress by this Board of the finality of a court-marital 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 offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20140007186





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ABCMR Record of Proceedings (cont)                                         AR20140007186



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