RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060012208 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. John T. Meixell

Member

Mr. Roland S. Venable

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, in effect, an upgrade of his Bad Conduct Discharge.

2.  The applicant states, in effect, that there were several witnesses who testified on his behalf at his court-martial.  He also states, in effect, that during his military career he had no prior problems of misconduct or in his civilian life.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 15 July 1992.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 July 1992, the date of his discharge.  The application submitted in this case is dated 16 April 2006.

2.  The applicant enlisted in the U.S. Army Reserve on 21 August 1975 and entered active duty in the Regular Army for a period of 3 years on 25 August 1975.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS)
71L (Administrative Specialist).  The highest rank the applicant attained was sergeant/pay grade E-5.  The applicant’s records show that he served continuously on active duty until his discharge on 15 July 1992. The applicant’s military service records document no acts of valor, significant achievement, or service warranting special recognition.

3.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Transportation Center and Fort Eustis, Fort Eustis, Virginia, General Court-Martial Order Number 2, dated 15 March 1991.  This order shows that on
12 December 1990, the applicant was convicted at a general court-martial convened at Headquarters, U.S. Army Transportation Center and Fort Eustis, Fort Eustis, Virginia.  The applicant pled not guilty to the charge and specification of maiming Lance Corporal S_______ by stabbing, on or about 1 June 1990, and pled not guilty to the charge and specification of attempted murder of Lance Corporal S_______, on or about 8 June 1990.  The applicant was found guilty of the charge and specification of maiming Lance Corporal S_______ by stabbing and was found not guilty of the charge and specification of attempt to murder Lance Corporal S_______.  His punishment was reduction to the grade of E-1, confinement at hard labor for 6 months, and discharge from the service with a bad conduct discharge.  The sentence was approved and ordered to be executed by the convening authority on 15 March 1991, except for the part of the sentence extending to a bad conduct discharge.

4.  The applicant was confined by military authorities from 13 December 1990 through 11 May 1991.  The applicant was then placed in an excess leave status without pay and allowances from 22 May 1991 through 15 July 1992.

5.  On 27 November 1991, the United States Army Court of Military Review, acting on the applicant's appeal, held the evidence legally and factually sufficient to support the applicant's conviction of maiming and found no prejudice in the case.  Thereafter, the United States Army Court of Military Review affirmed the findings of guilt and the sentence.  The record does not reflect the subsequent action, if any, by the Court of Appeals for the Armed Forces.  However, the subsequent action by the convening authority on 15 June 1992 directing execution of the Bad Conduct Discharge indicates all required appellate reviews were conducted.

6.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Transportation Center and Fort Eustis, Fort Eustis, Virginia, General Court-Martial Order Number 8, dated 15 June 1992.  This order shows, in pertinent part, that the applicant's sentence to be discharged from the service with a bad conduct discharge, reduction to the grade of private (E-1), and confinement for 6 months, which was adjudged on 12 December 1990, had been affirmed.  This document also provides, in pertinent part, that Article 71(c) having been complied with, the bad conduct discharge be executed.  This document further shows that part of the sentence extending to confinement had been served.

7.  Headquarters, U.S. Army Transportation Center and Fort Eustis, Fort Eustis, Virginia, Orders 195-17, dated 13 July 1992, ordered the discharge of the applicant.

8.  The applicant's DD Form 214 shows he was discharged with a bad conduct discharge on 15 July 1992 under the provisions of Army Regulation 635-200, chapter 3, section IV.  Item 18 (Remarks) of the DD Form 214 shows, in pertinent part, that the applicant had continuous active service from 20 March 1978 through 15 November 1979; from 16 November 1979 through 15 June 1983; and from 16 June 1983 through 15 March 1987.  This item also shows that the applicant was in an excess leave status for 421 days, from 22 May 1991 through 15 July 1992.  This document further shows that, at the time of his discharge, the applicant was credited with completing 13 years, 10 months, and 25 days net active service; had 150 days of time lost due to confinement (from 13 December 1990 through 11 May 1991); had 2 years, 6 months, and 25 days total prior active service; and 16 years, 5 months, and 20 days total active service.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, of this Army regulation, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated that a Soldier would 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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

11.  Title 10 of the United States Code, section 1552 as amended, does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his bad conduct discharge should be upgraded because throughout his military career he had no prior problems of misconduct, there were several witnesses who testified on his behalf at his court-martial, and he has not had any problems since then in his civilian life.

2.  The evidence of record confirms that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  The evidence of record also shows that conviction and discharge were effected in accordance with applicable law and regulations and his rights were protected throughout the court-martial process.

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  


4.  There is no evidence of record and the applicant provides insufficient evidence to support his claim that his discharge should be upgraded.  In the absence of evidence to the contrary, the Board presumes administrative regularity with respect to the applicant's court-martial and concludes that the applicant's record of service prior to his court-martial and the testimony of witnesses on his behalf at the court-martial were duly considered.

5.  The Board notes the applicant's assertion that he has not had any problems in his civilian life since his discharge.  However, the applicant's claim of good post-service conduct, in itself, is not sufficient to overcome his military record of indiscipline or as a basis for upgrading his discharge.

6.  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.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___LDS__  ___JTM _  ___RSV_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




____Linda D. Simmons______
          CHAIRPERSON




INDEX

CASE ID
AR20060012208
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/22
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19920715
DISCHARGE AUTHORITY
AR 635-200, Chapter 3, Section IV
DISCHARGE REASON
As a Result of Court-Martial, Other
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.