RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 April 2007
      DOCKET NUMBER:  AR20060013828


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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, that his dishonorable discharge (DD)
be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he was forced to protect himself
when he was being beaten by three other Solders and that it was not his
intent to hurt anyone during the incident that occurred on 29 July 1988.
He further states that his record of promotions shows he was generally a
good Soldier with great potential.  He states that it has been more than 15
years since his discharge and since then he has become a head of household,
a devoted husband and father, and has become a very productive citizen with
a steady employment record for the past 13 years.  He is asking that these
factors be considered and that his
DD be upgraded to a GD.

3.  The applicant provides a self-authored statement and three third-party
statements in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 7 May 1985.  He was trained in and awarded military
occupational specialty (MOS) 52D (Power Generation Equipment Repairer), and
the highest rank he attained while serving on active duty was specialist
(SPC).

2.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that
during his active duty tenure, he earned the Army Service Ribbon,
Noncommissioned Officer Professional Development Ribbon with Numeral 1, and
Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

3.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition, and there is no
evidence of a disciplinary history prior to the incident that led to his
court-martial and discharge.

4.  On 29 November 1988, a General Court-Martial (GCM) found the applicant
guilty, contrary to his pleas, of two specifications of violating Article
128 of the Uniform Code of Military Justice (UCMJ) by wrongfully assaulting
another Soldier on or about 29 July 1988, by cutting him in the chest with
a knife and thereby intentionally inflicting grievous bodily harm; and by
wrongfully assaulting a second Soldier on or about 29 July 1988, by cutting
him on the shoulder with a dangerous weapon, to wit: a knife.  The
resulting sentence from the military judge was reduction to private/E-1
(PV1), forfeiture of $400.00 per month for 36 months, confinement for four
years, and a DD.
5.  On 7 March 1989, the GCM Convening authority approved the sentence in
Headquarters, 8th Infantry Division GCM Orders Number 13, and directed that
with the exception of the DD, the sentence be duly executed.

6.  On 20 February 1990, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence pertaining to the
applicant after having determined that they were correct in law and fact.

7.  On 5 June 1990, the United States Court of Military Appeals, upon
consideration of the petition for grant of review of the decision of the
United States Army Court of Military Review, denied the petition.

8.  On 10 September 1990, GCM Order Number 190, issued by the United States
Army Disciplinary Barracks, United States Army Combined Arms Center and
Fort Leavenworth, Fort Leavenworth, Kansas, directed, Article 71c of the
UCMJ having been complied with, that the DD portion of the applicant's
sentence be duly executed.  On 5 October 1990, the applicant was discharged
accordingly.

9.  The DD Form 214 issued to the applicant upon his discharge confirms he
was separated with a DD under the provisions of chapter 3, Army Regulation
635-200, by reason of court-martial.  It also shows that at the time of his
separation, he had completed a total of 3 years, 6 months, and 23 days of
creditable active military service and that he had accrued 676 days of time
lost due to confinement, 616 days prior to normal expiration of term of
service (ETS) and 60 days subsequent to normal ETS.

10.  The applicant provides third-party statements from a co-worker, a
relative and a friend.  These statements attest to the applicant's good
character and his attributes as a husband, father, uncle, and friend.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides the policies and
procedures for separating members with a dishonorable discharge.  It
stipulates that a Soldier would be given a dishonorable discharge pursuant
only to an approved sentence of a general court-martial and that the
appellate review must be completed and the affirmed sentence ordered duly
executed.

12.  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's contention that the DD he received was based on an
incident during which he was defending himself was carefully considered.
However, 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.

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

3.  The supporting third-party character reference statements were also
carefully considered.  However, while these statements attest to his good
post service conduct, this factor alone is not sufficiently mitigating to
support granting the requested relief in this case.  A thorough and
comprehensive review of the applicant’s military service record shows that
while his service was generally good, there is no evidence of valor,
significant achievement, or service warranting special recognition.  As a
result, given the seriousness of the offenses for which the applicant was
convicted, clemency would not be appropriate in this case.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WDP_  __WFC__  __DED__  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.




                                  _____William D. Powers_____
                                            CHAIRPERSON


`

                                    INDEX

|CASE ID                 |AR20060013828                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/04/26                              |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |1990/10/05                              |
|DISCHARGE AUTHORITY     |AR 635-200   C3                         |
|DISCHARGE REASON        |C-M                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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