RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060015180 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Chester A. Damian

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, in effect, he would like to have his discharge upgraded because we all have been guilty of indiscretion, some severe, and some not so severe.  He states that by upgrading his discharge his quality of life would greatly improve and he can further his potential in the job market.  Also, the upgrade would benefit his family.

3.  He asks that the Board not allow the cloud of his discharge to overshadow his well-being and he would be very appreciative of a favorable decision to upgrade his discharge.

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a written statement, dated 6 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 25 February 1998.  The application submitted in this case was received on  
26 October 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’s records show he entered active duty on 7 January 1994.  He attended basic combat training and advanced individual training and was awarded the military occupational specialty 31L1O (Wire System Installer).  

4.  The applicant served honorably on active duty until 29 April 1996.  He then immediately reenlisted and attained the rank of specialist/pay grade E-4 while serving on active duty. 

5.  On 10 October 1996, the applicant was tried by a general court-martial for one specification of disobeying a lawful general regulation by wrongfully possessing a handgun in the barracks; three specifications of assaulting one civilian and two Soldiers by shooting at them with a loaded firearm; and one specification of willfully and wrongfully discharging a handgun in the Thunderbird Village, under circumstances as to endanger human life.  The applicant pleaded not guilty to all charges and specifications.

6.  The general court-martial found the applicant guilty on all charges and specifications, except for one specification which was dismissed by the Military Judge during the findings because it was multiplicious with the assault specifications.  His sentence consisted of reduction to private/pay grade E-1, confinement for nine months, and a bad conduct discharge.

7.  Headquarters, U.S. Army Intelligence Center and Fort Huachuca, Fort Huachuca, Arizona, General Court-Martial Order Number 1, dated 21 January 1997, shows that the applicant's sentence was approved and was ordered to be executed, except for the bad conduct discharge.  The applicant was credited with 30 days confinement.

8.  On 15 April 1997, the applicant requested excess leave pending completion of further appellate review of his case.

9.  On 15 October 1997, the Army Court of Criminal Appeals (ACCA) affirmed the findings and sentence in the applicant's case.

10.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, General Court-Martial Order Number 16, dated 29 January  
1998, shows that the applicant's sentence, as promulgated on 21 January  
1997, was affirmed.  Also, the applicant's bad conduct discharge was ordered to be executed.  The part of the applicant's sentence extending to confinement had already been served.

11.  On 25 February 1998, the applicant was discharged as a result of a court-martial.  He had completed 3 years, 7 months, and 12 days of active service.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed.

13.  Court-martial convictions stand as adjudged or as 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 (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant's statement that everyone has been guilty of some indiscretion was noted and considered by the Board; however, the statement is not sufficient to warrant clemency in view of his violent misconduct while on active duty.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  Any relief by this Board regarding the finality of a court-martial conviction is prohibited by law.  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.  The applicant's entire record of service was carefully considered.  However, given the seriousness of the offenses for which he was convicted, it was not considered to be sufficient to warrant clemency in this case.  As such, there is no basis upon which to support the applicant's request to upgrade his bad conduct discharge.

6.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement or to show clemency is warranted.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 February 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
24 February 2001.  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

___jrs___  ____lds__  ___cad__  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.



______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060015180
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/06/05
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.