RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060011654 


	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.


x

	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 that his bad conduct discharge (BCD) be upgraded to a general under honorable conditions discharge.

2.  The applicant states that “he believes the type of discharge to be in error or unjust because the incident in question was purely accidental as the trial records stated.”  

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 28 March 1986.  The application submitted in this case is dated 1 August 2006.

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 enlisted in the Regular Army on 31 January 1984 for a period of three years.  He completed one station unit training at Fort Sill, Oklahoma.  He was assigned to Germany as a carrier driver.  He was advanced to private first class on 1 October 1984.

4.  On 15 March 1985, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using provoking words towards a sergeant, for committing assault on two separate occasions, and for being disrespectful in language towards his superior noncommissioned officer.  His punishment consisted of a reduction to private E-1, a forfeiture of $200.00 pay for 2 months, and extra duty and restriction for 15 days.

5.  On 10 June 1985, the applicant was convicted by a special court-martial, pursuant to his pleas of guilty, of wrongfully possessing a switchblade knife, assault consummated by battery on two separate occasions, and drunk and disorderly conduct.  He was sentenced to a forfeiture of $400.00 pay per month for 4 months, confinement for 4 months, and a BCD.  

6.  On 31 October 1985, the United States Army Court of Military Review affirmed the findings of guilt and the sentence.  On 9 January 1986, the United States Court of Military Appeals denied the applicant’s petition for review.  On 24 February 1986, the convening authority ordered the BCD to be executed.

7.  The applicant’s Record of Trial of his special court-martial contained a Stipulation of Fact which described the incidents surrounding his offenses.  This document stated, in part, that “PV2 [G____] tried to take away the switchblade knife, and the [applicant] struggled and cut him on the right arm.  The switchblade used was a dangerous weapon. Furthermore, the bodily harm was done with unlawful force and violence.”  This document does not state the incident was accidental.  

8.  The applicant was discharged on 28 March 1986 under the provisions of Army Regulation 635-200, Chapter 3, Section IV as a result of court-martial.  He had served 1 year, 10 months, and 19 days of creditable active service with 101 days of lost time due to confinement.  

9.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

11.  Army Regulation 635-200, paragraph 3-7b, 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.

12.  Section 1552(f), Title 10, United States Code states that 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 Uniform Code of Military Justice (UCMJ) or to take clemency action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service record shows he was convicted by a special 
court-martial for wrongfully possessing a switchblade knife, for assault consummated by battery on two separate occasions, and for being drunk and disorderly.

2.  It is noted that the 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.  The applicant's contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.  

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 March 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 March 1989.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x______ x_____ x_____  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.




x_________
          CHAIRPERSON




INDEX

CASE ID
AR20060011654
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070403
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19860328
DISCHARGE AUTHORITY
AR635-200, chapter 3
DISCHARGE REASON
As a result of court-martial
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.

2.

3.

4.

5.

6.