RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060014889 


	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

Mrs. Victoria A. Donaldson

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Eddie L. Smoot

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 that his bad conduct discharge be upgraded to an honorable discharge. 

2.  The applicant states that during his second term of enlistment he was having domestic problems with his girlfriend which put a damper on his character.  The applicant continues that although he was having problems, he continued to perform his military duties to the fullest.  The applicant contends that he got into a fist fight with an enlisted member of his battalion while they were both intoxicated and that no one was hurt.

3.  The applicant states that he was found guilty of four counts of striking another and was sentenced to four months of confinement and a bad conduct discharge.

4.  The applicant provides no additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the United States Army Reserve on 4 December 1984 and served until he transferred to the Regular Army on 5 February 1985.  He completed basic and advanced individual training and was awarded the military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  The highest grade the applicant held was specialist/pay grade E-4.

2.  On 8 August 1990, the applicant pled guilty at a General Court-Martial of the following offenses: on or about 12 March 1990, committing an assault on a private first class; on or about 12 March 1990, unlawfully punching a private first class; on or about 5 March 1990, unlawfully punching a female; on or about 12 March 1990, unlawfully striking a private first class; and on or about 2 June 1990, unlawfully striking a female. 

3.  The applicant was sentenced to reduction to private/pay grade E-1, forfeiture of $400.00 pay per month for 4 months, confinement for 4 months, and to be separated from the service with a bad conduct discharge.  

4.  On 26 February 1991, the United States Army Court of Military Review affirmed the findings of guilty and the sentence as approved by the convening authority in the case.

5.  Headquarters, US Army Armor Center and Fort Knox General Court-Martial Order Number 81, dated 5 September 1991 shows that all required appellate reviews were conducted and directed the execution of the bad conduct discharge.

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged as a result of court-martial on 24 September 1991, under the provisions of Army Regulation 635-200 (Personnel Separations), with the separation code JJD and the Reentry code 4.  

7.  Army Regulation 635-200 provided for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial.  

8.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, 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 moderate the severity of the punishment imposed.

9.  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.

10.  Army Regulation 635-200, paragraph 3-7a, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contention that his bad conduct discharge should be upgraded to an honorable discharge was carefully considered and determined to be without merit.
2.  The applicant's records clearly show he was tried and convicted by a General Court-Martial for committing an assault on a private first class, unlawfully punching a private first class, twice unlawfully punching a female, and unlawfully striking a private first class. 

3.  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.  

4.  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.

5.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JLP____  _LDS___  __ELS___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.