RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  1 November 2007
	DOCKET NUMBER:  AR20070006326 


	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 L. Engle

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Lester Echols

Member

Mr. Jeffrey C. Redmann

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 honorable.

2.  The applicant states that he was court-martialed for having a fight with three Soldiers.  He served 19 1/2 months in confinement at Fort Leavenworth, Kansas.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 10 August 1976, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 36K2O (Field Wireman).

3.  On 14 December 1976, the applicant was assigned for duty as a wireman with the 2nd Battalion, 83rd Field Artillery Regiment, in the Federal Republic of Germany.

4.  On 8 November 1977, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 128 (Assault), two specifications for aggravated assault and two specifications for simple assault and battery.

5.  On 17 January 1978, a General Court-Martial was convened.  At the request of the defense, a continuance was granted for the purpose of securing individual requested counsel.  On 6 February 1978, the General Court-Martial reconvened. The defense counsel requested, and was granted, another continuance for the purpose of appealing the denial decision regarding the availability of the applicant’s choice of counsel.  On 2 March 1978, the General Court-Martial was again reconvened.   The applicant, before a military judge, pled not guilty to Specification 1 and 4 of Charge I and guilty to Specification 2 and 3 of Charge I.  He pled guilty to Charge I.  

6.  The military judge accepted the applicant's plea and found him guilty of specifications 1, 2, and 3; and not guilty of specification 4.  He sentenced the applicant to reduction to private (pay grade E1), a forfeiture of $260.00 pay per month for 28 months, confinement for 28 months, and a bad conduct discharge.

7.  On 30 March 1978, the Staff Judge Advocate, in a written review for the convening authority, summarized the evidence and trial discussion.  He stated that the court was legally constituted throughout the trial and had jurisdiction over the offense and the person tried; that the sentence was within the power of the court to adjudge and within the prescribed limitations on punishment; and that there were no errors which materially prejudiced the substantial rights of the applicant.  The Staff Judge Advocate recommended that the findings of guilty and sentence be approved, and, except for that part of the sentence extending to a bad conduct discharge, be ordered executed. 

8.  On 3 April 1978, the convening authority approved only so much of the sentence as provided for a reduction to private, pay grade E1, total forfeitures, confinement for 28 months, and a bad conduct discharge, and except for that part of the sentence extending to a bad conduct discharge, directed execution.

9.  On 19 July 1978, the United States Court of Military Review examined the case.   The applicant contended that the evidence of record was factually and legally insufficient to support the conviction of aggravated assault (specification 
1 of the charge).  The applicant's arguments were found to be without merit.  The findings of guilty and the sentence were affirmed.

10.  General Court-Martial Order Number 613, Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas 66027, dated 9 November 1978, ordered the bad conduct discharge executed.

11.  On 13 December 1978, the United States Army Clemency and Parole Board denied the applicant early release. 

12.  The applicant's Report of Separation From Active Duty (DD Form 214) shows that he was discharged on 29 January 1979 under the provisions of Army Regulation 635-200, chapter 11-2.  He received an under other than honorable conditions characterization of service.

13.  On 7 November 1979, the United States Army Clemency and Parole Board denied the applicant early release. 

DISCUSSION AND CONCLUSIONS:

1.  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 final discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  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 the aforementioned requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEA __  __LE  ___  __JCR __  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.






___James E. Anderholm__________
          CHAIRPERSON




INDEX

CASE ID
AR20070006326
SUFFIX

RECON
 
DATE BOARDED
20071101 
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19790129
DISCHARGE AUTHORITY
AR 635-200 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110
2.

3.

4.

5.

6.