RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           9 December 2003                   
	DOCKET NUMBER:   AR2003088665

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Richard P. Nelson		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Eloise C. Prendergast		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his dishonorable discharge to honorable.

2.  The applicant states “I believe having an inability to inform my peers or those of higher ranking about my voices telling me to do bad things while in the U.S. Army was a result of jeopardy my military history.”  The applicant further states that he has not had problems with the legal system since 1973.

3.  The applicant provides copies of a physician’s orders for medication, a psychiatric evaluation dated 10 May 2002, a County Mental Health Adult Intake Assessment, and a declaration of conservatorship, dated 21 March 2000.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's military records show he was inducted on 18 May 1971.  He was trained in Military Occupational Specialty (MOS) 71B20, Clerk Typist.  The applicant served 8 months in Germany and 2 months at Fort Lewis, Washington, prior to committing a robbery, and then going Absent Without Leave (AWOL) on 15 November 1972.  He returned to military control on 4 December 1972 and was confined on 5 December 1972 pending trial by court-martial.

2.  On 9 March 1973, the applicant was convicted by a General Court-Martial of Robbery, committed on 30 October 1972 and of AWOL from 15 November 1972 until 4 December 1972.  His sentence consisted of a dishonorable discharge, a forfeiture of all pay and allowances, a reduction from pay grade E-3 to pay grade E-1, and confinement at hard labor for 9 months.  Sentence was adjudged on 9 March 1973 and approved on 5 April 1973.

3.  On 23 July 1973, the Army Court of Military Review affirmed the court-martial’s findings and sentence.

4.  On 14 August 1973, the applicant petitioned the United States Court of Military Appeals for grant of review of the decision of the Court of Review.

5.  On 14 August 1973, the Army and Air Force Clemency and Parole Board disapproved clemency in the applicant’s case.

6.  On 16 November 1973, the United States Court of Military Appeals denied the applicant’s petition for review.  Accordingly, the sentence was ordered to be duly executed by Headquarters U.S. Disciplinary Barracks by the publication of General Court-Martial Order Number 1266, dated 19 December 1973.

7.  The applicant was discharged under dishonorable conditions on 26 March 1974 in pay grade E-1.  He had 1 year, 11 months and 9 days of creditable service for pay.

8.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The applicant’s entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

3.  The quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his dishonorable discharge to honorable.

4.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

6.  Records show the applicant should have discovered the error or injustice now under consideration on 26 March 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired 3 years from that date.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___mdm_  ___ecp___  ___rjw __  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.

		_________Mark D. Manning_____________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088665	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031209	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.