IN THE CASE OF: BOARD DATE: 28 April 2011 DOCKET NUMBER: AR20100025518 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. He also requests a personal hearing. 2. The applicant states his discharge was unjust for the offense he committed. Additionally, Article 134, Uniform Code of Military Justice (UCMJ), was declared unconstitutional. He served his country but he made a mistake. He would like to put the past behind him and ultimately die in peace. There are so many things he would like to tell the Board but he is not a writer and cannot express his remorse. That is why he is asking for a face to face. 3. The applicant provides his record of trial. 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 23 December 1969 for a period of 3 years and he held military occupational specialty 36K (Field Wireman). He served in Germany from 13 June 1970 to 24 December 1970. While in Germany, he was honorably discharged on 19 December 1970 for the purpose of immediate reenlistment. The DD Form 214 (Report of Transfer or Discharge) for this period of service shows he was discharged in the rank/grade of private first class (PFC)/E-3. 3. He executed a 3-year reenlistment on 20 December 1970 and he subsequently served in Vietnam from 28 February 1971 to 27 June 1971 and Korea from 28 June 1971 to 21 November 1972. He was advanced to specialist four (SP4)/E-4 on 21 June 1971. 4. His record also shows he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ as follows: * On 16 May 1970, for being absent without leave (AWOL) from 5 to 11 May 1970 * On 14 January 1972, for disobeying a lawful order and failing to go at the time prescribed to his appointed place of duty 5. On 11 December 1972, at Fort Sill, OK, he pled not guilty at a general court-martial to one specification of wrongfully distributing white powder containing phencyclidine (Article 134). The court found him guilty and sentenced him to reduction to private (PV1)/E-1, forfeiture of all pay and allowances, confinement at hard labor for 22 months, and a dishonorable discharge. 6. On 18 January 1973, the convening authority approved the sentence and, except for that part of the sentence extending to the dishonorable discharge, ordered it executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 7. On 31 May 1973, the U.S. Army Court of Military Review found the findings of guilty correct in law and fact and after reassessing the sentence determined, on the basis of the entire record, that the findings of guilty and only so much of the sentence as provides for dishonorable discharge, confinement at hard labor for 12 months, forfeiture of all pay and allowances, and a reduction to lowest enlisted grade should be approved, the same as thus modified was affirmed. 8. Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 770, dated 21 August 1973, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge sentence executed. 9. The applicant was discharged from the Army on 10 September 1973. His DD Form 214 issued for this period of service shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-1, as a result of court-martial with issuance of a Dishonorable Discharge Certificate. This document further shows he completed a total of 2 years and 10 months of total active service with 333 days of time lost. 10. Army Regulation 635-200 governs the separation of enlisted personnel. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 11. Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and 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. 13. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. It states the Director, ABCMR will manage the ABCMR day–to–day operations. The ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. With respect to the personal hearing, his request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The applicant was convicted by a general court-martial which was warranted by the gravity of the offense charged at the time. The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 3. There is no evidence to show and the applicant provides no evidence to show that Article 134 has ever been declared unconstitutional. 4. He was issued a dishonorable discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 5. His service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to a general discharge. 6. 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. Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore 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) AR20100025518 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100025518 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1