RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070010269 


	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. John Infante

Chairperson

Mr. Eric N. Anderson

Member

Mr. David K. Haasenritter

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, in effect, that a General Court-Martial convicted him for charges related to a shooting incident and possession of marijuana.  He argues that he was not involved in that shooting incident and did not know who did the shooting.  He also argues that the marijuana that was found and alleged to be his was actually found in an 8-man room and that he was living off-base with his girlfriend at that time. 

3.  The applicant did not provide any additional documentary evidence in support of his application.

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 he enlisted in the Regular Army on 8 August 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91B (Medical Specialist). The highest rank he attained during his military service was private/E-2.

3.  The applicant’s records further show that he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksman Marksmanship Qualification Badge with Grenade Bar.  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 9 July 1979, for committing an assault upon another Soldier, on or about 21 May 1979, by striking him on the head with a steel pipe, a means likely to produce grievous bodily harm.  His punishment consisted of reduction to the grade of private/E-1, forfeiture of $85 pay per month for two months, and 30 days of extra duty. 

	b.  On 21 November 1979, for failing to obey a lawful order by entering a female latrine on or about 20 November 1979.  His punishment consisted of reduction to the grade of private/E-1, suspended for 60 days. 

	c.  On 26 November 1979, for twice failing to obey a lawful order on 14 November 1979.  His punishment consisted of forfeiture of $100 for one month.

5.  On 24 May 1980, the applicant pled guilty at a General Court-Martial to one specification of leaving his appointed place of duty (emergency room) without authority on or about 28 December 1979; one specification of disobeying a general regulation by driving a U.S. Army vehicle without possessing a valid permit on or about 28 December 1979; one specification of wrongfully appropriating a government ambulance on or about 28 December 1979; one specification of wrongfully possessing 45.5 grams, more or less, of marijuana, on or about 3 April 1980; and one specification of violating a lawful general regulation by having in his possession a sap or blackjack on or about 3 April 1980.  Additionally, he pled not guilty to one specification of assisting an unknown assailant by concealing a pistol that was used by an unknown assailant in the shooting of two Soldiers on 27 October 1979.  The Court found the applicant guilty of all charges and specifications and sentenced him to a bad conduct discharge, confinement at hard labor for 18 months, forfeiture of all pay and allowances, and reduction to the grade of private/E-1.

6.  Headquarters, U.S. Army Transportation Center and Fort Eustis, Fort Eustis, Virginia, General Court-Martial Order Number 8, dated 30 July 1980, shows that only so much of the applicant’s sentence as provided for a bad conduct discharge, confinement at hard labor for (10) ten months, forfeiture of all pay and allowances, and reduction to the grade of private/E-1, was approved.  The Order further shows that pending completion of appellate review, the applicant was ordered confined at Fort Leavenworth, Kansas, or elsewhere as competent authority may direct.  The applicant was transferred to Fort Leavenworth, Kansas on or about 26 June 1980. 



7.  On 12 September 1980, the U.S. Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact, determined the basis of the entire record that they should be approved, and affirmed such findings of guilty and the sentence.

8.  On 13 February 1981, Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, Kansas, published General Court-Martial Order Number 118, suspending the unpaid portion of the applicant's sentence to forfeiture of all pay and allowances, for six months.  It also ordered the applicant restored to duty pending completion of appellate review.

9.  On 16 February 1981, the applicant was transferred to Fort Dix, New Jersey and was assigned to the Personnel Control Facility (PCF), Fort Dix, New Jersey.

10.  On 17 February 1981, the U.S. Court of Military Appeals denied the applicant's Petition for Grant of Review of the decision of the U.S. Army Court of Military Review.

11.  On 24 April 1981, the Commander, Headquarters Command, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, recommended denial of the applicant's clemency and stated that the applicant's record indicates he was prone to violence and treated regulations with little regard.

12.  On 5 May 1981, Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, published General Court-Martial Order Number 29 indicating that the portion of the applicant's sentence pertaining to confinement had been served.  He was accordingly discharged from military service on 28 May 1981.  The DD Form 214 he was issued confirms that he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) with a bad conduct discharge as a result of Court-Martial.  This form further confirms that the applicant completed 2 years, 2 months, and 2 days of creditable service and accrued 229 days of lost time.

13.  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.

14.  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.

15.  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 contends that his discharge should be upgraded.

2.  Evidence of record shows that the applicant was convicted by a General Court-Martial, which 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.  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.

3.  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, the applicant is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___ji___  __ena___  __dkh___  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.



							John Infante
______________________
          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.