IN THE CASE OF: BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150016257 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150016257 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150016257 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: a. set aside of his special court-martial conviction and b. restoration of his rank to staff sergeant. 2. The applicant states: a. The findings of his court-martial should be dismissed due to an injustice. The court-martial members did not consider the memorandum from a lieutenant colonel. b. The military judge's denial of the defense's motion to dismiss for lack of speedy trial was improper. The delays were unreasonable in his case. The Court of Military Appeals ruled that a convening authority may reverse the military judge. c. Based on the record, there is absolutely no evidence that would convince a person beyond a reasonable doubt that he crossed the center line into oncoming traffic. If the records show anything, it shows the German national crossed the center line. d. The members of the court were instructed by the military judge to remain silent. e. His rank was staff sergeant before his court-martial. 3. The applicant provides: * self-authored statement, dated 28 September 2015 * memorandum, dated 15 September 1970 * Special Court-Martial Order Number 6, dated 7 October 1970 * DA Form 20B (Insert Sheet to DA Form 20) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 30 June 1972 * result of trial, dated 16 April 1970 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 May 1952 and was honorably discharged on 13 May 1955. He enlisted again in the Regular Army on 25 May 1955 and remained on active duty through continuous reenlistments. He was promoted to staff sergeant effective 22 July 1965. 3. On 16 April 1970 contrary to his plea, he was convicted by a special court-martial of unlawfully committing an assault upon a German national by culpable negligence by driving a motor vehicle against a motor vehicle operated by the German national. He was sentenced to forfeit $100.00 pay per month for 3 months and reduction to sergeant. 4. He provided a memorandum from a retired lieutenant colonel to his commanding officer, dated 15 September 1970, requesting the applicant's findings and sentence be disapproved for the following reasons: (1) the military judge's denial of the defense's motion to dismiss for lack of speedy trial was improper; (2) there is absolutely no evidence in the applicant's record to convince the commanding officer beyond a reasonable doubt that the applicant crossed the center line; and (3) the activities of the members appointed to the court (the original members had been instructed by the military judge to remain silent concerning the questions he propounded to the first court, but the remaining members of the original court violated the judge's instructions and discussed the proceedings with the newly appointed members). 5. The retired lieutenant colonel also stated he has never seen such a flagrant violation of a judge's orders and such a contaminated court in his 18 years practicing before military courts. The Supreme Court of the United States recently deprived the military of the ability to try Soldiers for crimes committed against the civilian population because of the manner in which the military selects its court or jury. If the commanding officer approves the activities of her court members, then the Army will only have itself to blame when Congress directly intervenes and requires new methods of jury selection and additional numbers of preemptory challenges. The fact that the court gave a light sentence should not influence him in any way in deciding to disapprove their action. 6. On 7 October 1970, the convening authority approved the sentence. 7. Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was reduced from staff sergeant to sergeant effective 7 October 1970. 8. Headquarters, U.S. Army Europe and Seventh Army Special Troops Group, Special Orders Number 81, dated 24 April 1972, retired him effective 30 June 1972. These orders show his rank as sergeant. 9. There is no evidence showing he was promoted to staff sergeant following his special court-martial conviction in April 1970 or prior to his retirement. 10. He provided a self-authored statement, dated 28 September 2015, stating: a. He filed this appeal as a result of an unjust legal action taken against him while he was serving on active duty. He found a memorandum his lawyer wrote on 15 September 1970 to his commanding officer. He never received a response to this memorandum. He asks the Board to review his court-martial action based on injustice, lack of evidence, tainted and improper proceedings, and due process violations. b. Prior to his court-martial, he was performing duties as a staff sergeant. His rank was reduced to sergeant based on the court-martial's wrong decision. c. He is requesting restoration of his rank to staff sergeant. REFERENCES: Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. DISCUSSION: 1. The applicant's contentions that the military judge's denial of the defense's motion to dismiss for lack of speedy trial was improper, there is no evidence in the records showing he crossed the center line, and the members of the court were instructed by the military judge to remain silent, relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated during the appellate process. 2. His request to set aside his special court-martial conviction was carefully considered. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. 3. His request to restore his rank to staff sergeant was also noted. There is no evidence the special court-martial was improperly imposed. It appears to have been the military judge's judgment that committing an assault by culpable negligence warranted a one-grade reduction. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016257 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016257 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2