RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 November 2005
	DOCKET NUMBER:  AR20050001780 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Mr. Ronald DeNoia

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. John E. Denning

Member

Ms. Jeanette R. McCants

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his Bad Conduct Discharge.

2.  The applicant states that after he was sent to prison he received a letter from the Department of the Army stating that all charges had been dropped due to discrimination.  He also states that this information should be in his file.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty); Headquarters US Army Armor Center and Fort Knox General Court-Martial Order Number 45; US Disciplinary Barracks, Fort Leavenworth Order 102-15; Headquarters US Disciplinary Barracks General Court-Martial Order Number 747; and Headquarters 5th Infantry Division General Court-Martial Order Number 9; 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 29 July 1981.  The application submitted in this case is dated 3 February 2005.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant entered active duty on 25 October 1977.  Upon completion of basic training and advanced individual training he was awarded the military occupational specialty (MOS) 12B (Combat Engineer).

4.  On 10 December 1979, nonjudicial punishment was imposed against the applicant for being disrespectful toward a superior noncommissioned officer.  His punishment consisted of forfeiture of $125.00 per month for one month (suspended for 60 days), and 14 days extra duty.

5.  The applicant's service personnel records contain Headquarters, 5th Infantry Division General Court-Martial Order Number 9, dated 4 September 1980.  This order shows the applicant was tried before a General Court-Martial on 22 April 1980 for assaulting a fellow Soldier by "hitting, punching, kicking and stomping him in the head and body with means and force likely to produce grievous bodily harm, to wit: his fists and shod foot."  The applicant pled guilty, except to the words "by hitting, punching, kicking and stomping him in the head and body with a means and force likely to produce grievous bodily harm, to wit: his fists and shod foot" substituting the words "by punching him in the face with his fist -- by punching him with his fist."  The military judge changed the plea to not guilty.

6.  The applicant was found guilty of aggravated assault with means and force likely to produce grievous bodily harm, and the military judge sentenced the applicant to be discharged from the service with a bad conduct discharge, to be confined at hard labor for 18 months, to forfeit $448 pay per month for 12 months, and to be reduced to the grade of private/pay grade E-1.  The sentence was adjudged on 22 April 1980 and on 4 September 1980 the convening authority approved the sentence.

7.  Headquarters US Disciplinary Barracks, Fort Leavenworth General Court-Martial Order Number 747, dated 12 November 1980 suspended the part of the sentence involving forfeiture of pay in excess of $224 per month.

8.  Headquarters US Army Armor Center General Court-Martial Order Number 45, dated 22 July 1981 affirmed the findings of guilty and the sentence.

9.  The applicant's DD Form 214 shows that he was separated on 29 July 1981, under the provisions of Chapter 11 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of court-martial and furnished a Bad Conduct Discharge Certificate.  The applicant's DD Form 214 also shows that he had served 2 years, 4 months,. and 21 days of active service.

10.  A review of the applicant's military service record shows no evidence that discrimination was involved or that the charges against him were dropped.

11.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided, in pertinent part, that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

12.  Title 10 United States Code, section 1552 governs operations of the Army Board for Correction of Military Records (ABCMR).  Section f of this provision of law essentially states that the authority of the ABCMR only extends to correction of a record. 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 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

14.  Army Regulation 635-200, paragraph 3-7, 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.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Records show the applicant was tried by a general court-martial, he was found guilty, and he was sentenced by a military judge.  The convening authority approved the sentence and the findings of guilty and the sentence were affirmed.

3.  The trial by General Court-Martial was warranted by the gravity of the offense 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.

4.  The applicant’s record of service included nonjudicial punishment and a conviction by general court-martial.  As a result, it is evident that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis to grant clemency in the form of an honorable discharge.
5.  Furthermore, absent evidence of noteworthy or highly meritorious service, there is no basis to grant clemency in the form of a general discharge.

6.  Contrary to the applicant's contention, there is no evidence contained in his military records to show he was the victim of discrimination or that the charges were dropped.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 July 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 July 1984.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__le____  __jed___  __jrm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.


							Lester Echols
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20050001780
SUFFIX

RECON

DATE BOARDED
20051117
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19810729
DISCHARGE AUTHORITY
AR 635-200 . . . .  
DISCHARGE REASON
Result of Court-Martial
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.6801.0000
2.

3.

4.

5.

6.