IN THE CASE OF:
BOARD DATE: 19 March 2015
DOCKET NUMBER: AR20140012323
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 that his rank of specialist E-4 (SP4) be restored and his DD Form 214 corrected accordingly.
2. The applicant states, in effect, that he was unjustly reduced from the rank of SP4 for disobeying an order in a combat zone about 3 weeks from his expiration of term of service (ETS).
3. The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), marriage license, and a newspaper article dated 25 March 1968.
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 was inducted on 17 May 1966. He completed his basic training at Fort Benning, Georgia and his advanced individual training (AIT) as a radio teletype repairman at Fort Jackson, South Carolina and Fort Gordon, Georgia.
3. On 7 March 1967, while at AIT at Fort Gordon, nonjudicial punishment (NJP) was imposed against him for failure to sign out on pass.
4. He was transferred to Vietnam on 1 April 1967 and on 24 May 1967, NJP was imposed against him for failure to go to his place of duty.
5. He was advanced to the pay grade of E-4 on 17 August 1967
6. On 16 February 1968, he was convicted by a summary court-martial of disobeying a lawful command to trim his mustache from a superior commissioned officer. He was sentenced to a reduction to the pay grade of E-1, a forfeiture of $40.00 and hard labor without confinement for 45 days. The convening authority approved the sentence on 17 February 1968.
7. He departed Vietnam on 30 March 1968 and was transferred to Fort Lewis, Washington where he was released from active duty (REFRAD) on the same day as an overseas returnee in the pay grade of E-1. He had served 1 year, 10 months and 14 days of active service.
8. 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. Trial by court-martial was warranted by the gravity of the offense charged. Conviction and sentence were effected in accordance with the applicable law and regulation and the reduction in grade appropriately characterizes the misconduct for which the applicant was convicted. Therefore, the punishments directed appear to be appropriate considering the facts of the case.
2. The applicants contentions have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offense, the lack of mitigating circumstances and his otherwise undistinguished record of service.
3. Accordingly, his sentence was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant restoration of his rank based on clemency.
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) AR20140012323
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ABCMR Record of Proceedings (cont) AR20140012323
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