IN THE CASE OF:	  

		BOARD DATE:	    14 April 2011

		DOCKET NUMBER:  AR20100023697 


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 that his bad conduct discharge (BCD) be upgraded to honorable or general.

2.  The applicant states he was simply defending himself from a higher ranking Soldier who struck him first.  He did agree to a plea bargain arrangement, but now he would like the record to reflect the truth.  He says he knows what took place.

3.  The applicant provides no supporting documents.  

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.  Following 4 months of initial active duty for training and about a year in the Army National Guard, the applicant was involuntarily ordered to active duty on 23 February 1976.

3.  A special court-martial found the applicant guilty of assault with intent to inflict grievous bodily harm by striking a specialist four in the face with a chair, possession of marijuana, and failure to obey a lawful general regulation by entering the women's barracks.  The adjudged sentence was confinement for 4 months, forfeiture of $240 pay per month for 4 months and a BCD.

4.  The findings and sentence were approved as adjudged.

5.  On 23 November 1976 the Army Court of Military Review affirmed the approved findings and sentence.  The United States Court of Military Appeals declined to review the case.

6.  Article 71(c) of the Uniform Code of Military Justice having been complied with the sentenced BCD was ordered executed on 23 February 1977.

7.  The applicant was discharged on 22 March 1977.  The applicant had 1 year and 5 days creditable active duty service and 146 days lost time.

8.  There is no indication that the applicant appealed to the Army Discharge Review Board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was simply defending himself.  He did agree to a plea bargain arrangement, but now he would like the record to reflect the truth.

2.  Trial by court-martial was warranted by the gravity of the offenses 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.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.

4.  There is no basis for granting the applicant's requested relief.


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)                                         AR20100023697





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ABCMR Record of Proceedings (cont)                                         AR20100023697



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