| Mr. Carl W. S. Chun | Director | |
| Ms. Deyon D. Battle | Analyst |
| Mr. John N. Slone | Chairperson | ||
| Mr. Thomas D. Howard | Member | ||
| Mr. Thomas Lanyi | Member |
APPLICANT REQUESTS: That his bad conduct discharge (BCD) be upgraded to a general discharge.
APPLICANT STATES: That the night of the incident he was intoxicated and did not handle the situation in a professional manner. He states that a homosexual approached him and tried to push himself upon him. He states that he began to walk away from him when the individual grabbed him and before he knew what happened, he had hurt him really bad. He states that he got scared and left him laying there on the ground and 2 days later he was arrested for the attack. He states that he was advised by his lawyer to plead guilty to the charge of sodomy as well as aggravated assault, as his lawyer had made a deal with the government. He concludes by stating that he does have an alcohol problem which he is currently getting help for; however, he never meant to hurt that person nor does he want to ever hurt anyone else.
EVIDENCE OF RECORD: The applicant's military records show:
On 2 January 1992, he enlisted in the Army at Fort Jackson, South Carolina, for 4 years in the pay grade of E-2. He successfully completed his training as a wheel vehicle repairer. On 10 June 1992, he was transferred to Hawaii.
He was promoted to the pay grade of E-3 on 1 November 1992 and to the pay grade of E-4 on 1 February 1994.
His awards include the Army Achievement Medal, the Armed Forces Expeditionary Medal, the Humanitarian Service Medal, the Army Service Ribbon, the Overseas Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Driver and Mechanic Badge with Driver-W Bar.
On 12 December 1995, the applicant was tried by a general court-martial of committing sodomy and of committing an assault upon another by repeatedly striking him, wrestling him to the ground and choking him, kicking him with a shod foot, thereby intentionally inflicting grievous bodily harm, to wit: multiple facial fractures including nasal bone fractures of the orbit bone of the left eye; and deep lacerations about the face and head. He plead guilty and he was found guilty of the sodomy charge. He plead guilty, by exceptions and substitutions to the assault charge and he was found guilty accordingly. He was sentenced to a BCD, confinement for 17 months, a reduction to the pay grade of E-1 and a forfeiture of all pay and allowances.
The convening authority approved the sentence as adjudged and on 19 April 1996, the United States Court of Military Review affirmed the findings and sentence as approved by the convening authority.
Accordingly, on 26 February 1997, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of a duly reviewed and affirmed general court-martial conviction. He had completed 4 years, 4 months and 19 days of total active service and he was furnished a BCD.
On 29 April 2003, the applicant submitted an application to the Army Discharge Review Board requesting an upgrade of his discharge. However, since that board is not authorized to consider discharges that are the result of a general court-martial conviction, this Board has accepted the DD Form 293 in lieu of the DD Form 149 normally used when applying to the Army Board for Correction of Military Records.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, paragraph 3-11 provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence duly executed.
Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Army Board for Correction of Military Records 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 modify the severity of the punishment imposed.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. 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.
2. The type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.
3. The Board has noted the applicant’s contentions. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses.
4. 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. 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.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
___tdh __ ___js____ __tl_____ DENY APPLICATION
| CASE ID | AR2003091087 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2003/07/22 |
| TYPE OF DISCHARGE | BCD |
| DATE OF DISCHARGE | 19970226 |
| DISCHARGE AUTHORITY | AR 635-200, CH 3 |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 31 | 105.0100 |
| 2. 716 | 144.7300/ASSAULT |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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