RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20070003352 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. William Blakely

Chairperson

Mr. William D. Powers

Member

Mr. Donald L. Lewy

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 (BCD) be upgraded.

2.  The applicant states, in effect, that he is innocent and that he was falsely accused of assault.  Because of his race and incorrect statements made against him, he was treated unjustly.  He further states at that time he had no defense or knowledge of the proceedings.

3.  The applicant provides no additional documentation in support of this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 22 December 1976.  The application submitted in this case is dated 
31 January 2007.

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 5 October 1973 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 36K (Tactical Wire Operation Specialist).

4.  On 18 December 1975, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty and for attempting to use a ration control plate belonging to someone else.

5.  On 4 March 1976, the applicant was convicted, contrary to his pleas, by a special court-martial, of committing assault and battery, possessing num-chucks in violation of a lawful, general regulation, and making a false statement.  His sentence consisted of a reduction to the grade of private/pay grade E-1, a forfeiture of $200.00 pay per month for four months, confinement at hard labor for four months, and a BCD.  

6.  On 23 June 1976, the U.S. Army Court of Military Review (USACMR) considered the applicant's appeal and found that the findings and sentence were correct in law and fact and affirmed the finding and sentence.

7.  On 12 August 1976, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty.

8.  Headquarters, United States Army Field Artillery Center and Fort Sill Special Court-Martial Order Number 76, dated 10 December 1976, directed that the bad conduct discharge be executed.

9.  On 22 December 1976, the applicant was discharged with a bad conduct discharge pursuant to his court-martial sentence.  He completed 2 years, 
11 months, and 14 days of creditable active service on his enlistment with 96 days of lost time due to confinement.

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.  

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.  In accordance with Title 10 of the United States Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction by a court-martial convened under the UCMJ.  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.

13.  The applicant's records does not show any attempt by the applicant to apply to the Army Discharge Review Board (ADRB) for an upgrade within 15 years of his BCD.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by court-martial was warranted by the gravity of the offense for which he was charged and convicted.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the court-martial process.  The discharge appropriately characterizes the misconduct for which the applicant was convicted.  

2.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 December 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
21 December 1979.  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

__WB ___  __WDP_   __DLL __  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.




____ William Blakely __
          CHAIRPERSON




INDEX

CASE ID
AR20070003352
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.