BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140017057 


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).

2.  He states there were at least three major errors committed by the military court-martial and the Court of Military Review.  He adds due process was ignored thus violating his constitutional rights.

3.  He provides:

* DD Form 214 (Report of Separation from Active Duty)
* DA Form 2-1 (Personnel Qualification Record)
* DA Form 2-2 (Insert Sheet to DA Form 2 Record of Court-Martial Conviction)
* DD Form 4 (Enlistment Contract - Armed Forces of the United States)
* Special Orders Number 246, dated 19 December 1975
* General Court-Martial Order Number 66, dated 20 June 1975
* General Court-Martial Order Number 4, dated 5 January 1976
* General Court-Martial Order Number 18, dated 28 January 1976
* United States Army Court of Military Review decision, dated 4 September 1975
* Request/Decline Narrative Reason for Separation

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 26 June 1974. 

3.  On 20 May 1975, he was convicted by a general court-martial of committing assault on a Soldier by cutting and stabbing him thereby, intentionally inflicting grievous bodily harm.  The court sentenced him to reduction to the grade of E-1, a forfeiture of all pay and allowances, confinement at hard labor for 18 months, and a dishonorable discharge.  The convening authority approved only so much of the sentence as provided for reduction to the grade of E-1, a forfeiture of $244.00 pay per month for one year, confinement at hard labor for one year, and a BCD.

4.  On 4 September 1975, the United States Army Court of Military Review affirmed the findings of guilty.  The Decision document stated that the military judge failed to apprise the applicant of his rights as to allocution prior to sentencing.  Since this procedure is now made mandatory by a revision in the Manual of Court-Martial, the failure of the military judge to personally remind the applicant of these rights is an error.  The court will reassess the sentence in order to ensure fairness to the applicant as to any possible effect this error may have had concerning the sentence.  Reassessing the sentence on the basis of the above-indicated error and the entire record, the court affirmed only so much of the sentence as provided for a BCD, confinement at hard labor for nine months, a forfeiture of $225.00 pay per month for nine months, and reduction to the grade of E-1.

5.  General Court-Martial Order Number 4, dated 5 January 1976, restored the applicant to duty pending completion of the appellate review.  On 28 January 1976, his sentence was affirmed and the BCD ordered executed.

6.  His DD Form 214 shows he was discharged on 6 February 1976 with an under other than honorable conditions character of service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, with the issuance of a DD Form 259A (BCD Certificate).  He completed 10 months and 9 days of total active service with 272 days of time lost.

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

	a.  Chapter 11, in effect at the time, established policy and procedures for separating members with a dishonorable discharge or BCD.  Paragraph 11-2 provided that a BCD would be given pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

	b.  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.

	c.  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.

8.  Court-martial convictions stand as adjudged or as 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 maintains that errors were committed by the military court-martial and the Court of Military Review which ignored due process and violated his constitutional rights.

2.  The evidence of record shows he was given a BCD pursuant to an approved sentence of a general court-martial.  The Court of Military Review affirmed the findings of guilty, but noted that the military judge failed to apprise the applicant of his rights as to allocution prior to sentencing.  The court reassessed his sentence and his entire record to insure fairness to the applicant.  The court affirmed only so much of the sentence as provided for a BCD, confinement at hard labor for nine months, a forfeiture of $225.00 pay per month for nine months, and reduction to the grade of E-1. 

3.  All requirements of law and regulation were met and his rights were fully protected.  There is no evidence and the applicant did not provided any to show he was not afforded due process.  Therefore, his contention, in effect, that he was denied due process and his constitutional rights were violated is not supported by the available evidence.

4.  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.  Therefore, given his offense 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)                                         AR20140017057





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ABCMR Record of Proceedings (cont)                                         AR20140017057



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