IN THE CASE OF: BOARD DATE: 24 June 2021 DOCKET NUMBER: AR20210006927 APPLICANT REQUESTS: In effect, correction of his record by setting aside his court- martial conviction. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) x3 * Special Court-Martial Order Number 239, Headquarters Support Brigade, 2nd Logistical Command, APO San Francisco * Special Court-Martial Order Number 766 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in three DD Forms 149 that: * There are prejudice and stereotypes to be overcome in the Armed Services; he joined the Army because he wanted to serve his country and make a difference * He believes standards should be set to show people everywhere are equal 3. The applicant's record shows he served honorably in the Regular Army from 2 May 1966 to 25 March 1969 and from 26 March 1969 to 7 June 1973. He served in Germany from 11 November 1966 to 22 January 1968, Korea from 18 March 1968 to 16 September 1969, and in Okinawa from 29 August 1970 to 10 October 1971. 4. The applicant provided and his record contains: a. Special Court-Martial Order Number 239 showing charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ), while assigned to Okinawa for violation of Article 91, three specifications, on 10 June 1971: * Willfully disobeying a lawful order given by a non-commissioned officer (NCO), to get into the proper uniform * Being disrespectful in language toward sergeant first class (SFC) THE, by saying to him “quit harassing me and get off my f****** back,” or words to that effect * Being disrespectful in deportment towards SFC THE, by ignoring and walking away from SFC THE when told to return b. Violation of Article 89, two specifications, on 19 August 1971: * Behaving with disrespect toward a commissioned officer by referring to him as the “Rabbit Captain,” or words to that effect * Behaving with disrespect toward First Lieutenant R, by saying to him “F*** You Sir," or words to that effect c. He pled not guilty to all specifications and charges. d. On 14 September 1971, the court found him guilty of all charges and specifications and sentenced him to reduction to pay grade E-1, confinement at hard labor for 6 months, and a forfeiture of $125 pay for 6 months. e. On 27 September 1971, the convening authority approved the sentence. 5. Special Court-Martial Order Number 766, shows effective 8 December 1971 all unexecuted portions of the sentence to a forfeiture of pay and confinement at hard labor pertaining to the applicant were suspended until 7 January 1972, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action. 6. On 7 June 1973, he was honorably released from active duty, due to Section VI, Chapter 2, Army Regulation 635-200, and he was transferred to the U.S. Army Reserve (USAR) Control Group Individual Ready Reserve (Standby) to complete his remaining Reserve obligation. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 4 years of net active service this period and 6 years, 10 months, and 24 days of total active service. His awards are listed as the National Defense Service Medal, Armed Forces Expeditionary Medal, and Expert Marksmanship Qualification Badge Rifle (M-16). 7. He served in a variety of USAR assignments. On 21 August 2007, the U.S. Army Human Resources Command issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), in the retired grade/rank of sergeant first class (SFC), effective 22 July 2007. He completed 24 years, 1 month, and 2 days of qualifying service toward non-regular retirement. 8. He contends that his court-martial conviction should be set aside due to the prejudices and stereotypes to be overcome in the Armed Services. He joined the Army because he wanted to serve his country and make a difference. He believes standards should be set to show people everywhere are [treated] equally. a. The available evidence provides the applicant was convicted by a special court- martial of willfully disobeying a lawful order, verbally disrespecting a senior noncommissioned officer and disrespectful in deportment [behavior] on 10 June 1971. He was also convicted of disrespectful behavior toward an NCO by referring to him as the “Rabbit Captain,” and disrespectful behavior toward a First Lieutenant on 19 August 1971. b. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. c. Section 1552(f), Title 10, USC states the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the UCMJ or to take clemency action. For example, had the applicant been sentenced to a bad conduct discharge and his sentence was ordered executed, the Board could have considered upgrading that discharge. The Board is not empowered to set aside a court-martial conviction. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The ABCMR 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. The Board found insufficient evidence of in- service mitigating factors for the misconduct to weigh a clemency determination. The Board concluded there was insufficient evidence of an error or injustice which would warrant setting aside his court-martial conviction, nor is the ABCMR empowered to do such. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX XXX XX DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 Soldier's discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. For example, had the applicant been sentenced to a bad conduct discharge and his sentence was ordered executed, the Board could have considered upgrading that discharge. The Board is not empowered to set aside a court-martial conviction. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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 (cont) AR20210006927 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210006927 5 ABCMR Record of Proceedings (cont) AR20210006927 4