RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 December 2007
	DOCKET NUMBER:  AR20070008992 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Michael J. Flynn

Member

Ms. Sherry J. Stone

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 an upgrade of his discharge. 

2.  The applicant states that at the time of his discharge, he was very young and immature and that he did not intentionally mean to hurt anyone.  He further adds that he has lived with and regretted the incident that happened 23 years ago, has learned a valuable lesson, and has turned his life around to a positive one. 

3.  The applicant provided the following documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty);

	b.  DA Form 2-1 (Personnel Qualification Record);

	c.  Certificate of Training: Job Search Skills, Georgia Department of Labor;

	d.  Certificate of Achievement, dated 9 May 1995, Liberty Works Welding Department;

	e.  Congratulations inter-office memorandum, dated 1 May 1992, Outstanding Employee;

	f.  Certificate of Training, dated 14 January 1994;

	g.  Acceptance as a Welding Coordinator inter-office correspondence, dated 21 September 1990;

	h.  Certificate of Training, dated 1 November 1989, Facilitation and Team Skills training, Hyster Company;

	i.  Certificate of satisfactory completion of Welding Test, dated 1 August 1989;

	j.  Certificate of completion, Pre-Employment  Welding Instructor, dated 13 October 1989;

	k.  Georgia Department of Technical and Adult Education, Certificate of Completion, Quick Start Development Workshop, dated 27 April 1989;

	l.  Certificate of Completion, Hyster Company Welding Assembly and Technical Skills Training, dated 3 November 1988;

	m.  Certificate of Training, Program for Lift Truck Operations, dated 3 November 1988; and

	n.  Sea Island Company Employee Performance and Development Review, dated 23 May 2007.

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.  The applicant's records show that the applicant was born on 16 August 1958 and enlisted in the Regular Army, at the age of 21, on 8 May 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 44B (Metal Worker).  The highest rank he attained during his military service was specialist four/pay grade E-4. 

3.  The applicant's records show that he was awarded the Army Service Ribbon, the Overseas Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  The applicant's records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 30 March 1981, for twice failing to go to his appointed place of duty on the same day, 12 March 1981.  His punishment consisted of 14 days of extra duty, reduction to the grade of private first class/pay grade E-3, and forfeiture of $149 pay for one month (suspended for 60 days).
	b.  On 7 April 1982, for failing to go to his appointed place of duty on 24 March 1982 and on 1 April 1982.  His punishment consisted of forfeiture of $70 pay for one month and 7 days of extra duty.

5.  On 14 May 1982, the applicant was tried at a Special Court-Martial for one specification of committing assault against another Soldier by cutting him on the neck with a sharp object and did thereby intentionally inflict grievous bodily harm upon him, to wit a deep cut.  He pled guilty, except to the words "commit an assault upon" and "by cutting another Soldier on the neck with a sharp object and did thereby intentionally inflict grievous bodily harm upon him, to wit a deep cut”; substituting therefore, the words "unlawfully strike" and "on the face with his hand"; to the excepted words, not guilty; to the substituted words, guilty.  The Court found him guilty of the original charge and its specification and sentenced him to reduction to the grade of private/pay grade E-1, forfeiture of $367 pay per month for 3 months, confinement at hard labor for 3 months, and discharge from the service with a bad conduct discharge. 

6.  On 25 April 1983, the Army Court of Military Review affirmed the findings of guilty and the sentence of reduction to the grade of private/pay grade E-1, forfeiture of $367 pay per month for 3 months, confinement at hard labor for 3 months, and discharge from the service with a bad conduct discharge.

7.  Subsequent to his confinement at the U.S. Army Correctional Activity, Fort Riley, Kansas, the applicant was discharged on 12 August 1982.  The DD Form 214 he was issued at the time of his discharge confirms he was discharged with a Bad Conduct Discharge as a result of Court-Martial, in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separation).  This form further confirms that he completed a total of 4 years and 19 days of creditable active military service and 75 days of lost time due to confinement.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15 year statue of limitations.

9.  Title 10, 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.



10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 13-11, provides that a bad conduct discharge will be issued pursuant to an approved sentence of a Court-Martial, after completion of the appellate review, and the sentence has been affirmed and ordered duly executed.

11.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to an upgrade of his discharge because he was young and immature at the time of his incident.

2.  The applicant was 21 when he enlisted in the Regular Army and was almost 24 years old when he committed his offense.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  The applicant’s military record indicates that his trial by Special Court-Martial on 13 May 1982 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.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __mjf___  __sjs___  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.




							William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070008992
SUFFIX

RECON

DATE BOARDED
20071211
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19830812
DISCHARGE AUTHORITY
AR 635-200, Chap 3
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
106.0008
2.

3.

4.

5.

6.