IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080007647 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his bad conduct discharge (BCD).  

2.  The applicant states, in effect, that he was a young man who had no direction and he made foolish mistakes that he has regretted.  He also states that the bad decision he made in the Army has really hurt his future, but he has no one to blame but himself.  His health is not the best and he takes several different medications for his blood pressure.  He further states, in effect, that he works at the Venetian Hotel and Casino and has no medical or dental benefits and he really needs those benefits due to the price of his medications.  He has been getting assistance from the State of Nevada, but he does not know how long that will last.

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), six character reference letters, and one medical assessment letter.

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 29 October 1976, for 4 years.  He completed basic and advanced training and was awarded military occupational specialty 11B, Infantryman.  He was promoted to pay grade E-4 on 8 February 1979.

3.  The applicant's records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on the following 5 separate occasions for the offenses indicated:  24 March 1977, for absenting himself from his unit; 2 September 1977, for violating a lawful order; 7 March 1978, for assaulting a Korean national on the head with a night stick; 11 June 1980, for absenting himself from his unit; and 10 July 1980, for failing to go to his appointed place of duty.  His punishments included reductions to pay grades E-2 and E-1, forfeitures of pay, and extra duty days and restrictions.

4.  The applicant's official record also shows an extensive history of formal counseling, to include:  family problems interfering with his work performance and attitude, operating a vehicle with no post registration; and being involved in an accident, failing to attend a remedial driving course; and incurring financial responsibility for the accident.

5.  On 17 October 1979, the applicant was convicted by a Special Court-Martial of two specifications of wrongfully selling some amount of Phencyclidine, a controlled substance, on 2 August 1979, to two members of the Armed Forces who were going to return to Fort Bliss, Texas, with the Phencyclidine for the purpose of selling it to service members, and four specifications of wrongfully transferring and selling 203.67 grams of marijuana, on 5 July 1979 and 2 August 1979, to two members of the Armed Forces who were going to return to Fort Bliss, with the marijuana for the purpose of selling it to service members.  He was sentenced to a reduction to pay grade E-1, a forfeiture of pay for six months, and confinement at hard labor for six months.  




6.  On 21 December 1979, Special Court-Martial Order Number 405, was issued suspending the unexecuted portion of the approved sentence to confinement at 
hard labor for six months until 23 April 1980, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action.

7.  On 13 February 1980, Special Court-Martial Order Number 22, was issued suspending the unexecuted portion of the approved sentence of forfeiture of pay for six months until 23 April 1980, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action,

8.  The applicant was again advanced to pay grade E-2 on 1 May 1980. 

9.  On 15 September 1980, the applicant's commander initiated a Bar to Reenlistment against him based on his record of court-martial convictions and nonjudicial punishments.  The bar was approved on 23 September 1980.

10.  On 9 March 1981, the applicant was convicted by a General Court-Martial of one specifications of committing an assault upon a female Soldier [his wife] by striking her with his fists and arm, which was in a plaster cast, and intentionally inflicting grievous bodily harm upon her on 2 November 1980, and one specification of, after transporting the same Soldier against her will, committing an assault upon her by striking her on the body with a means likely to produce grievous bodily harm on 2 November 1980.  He was also convicted of one specification of escaping from the lawful custody of a military policeman on 2 November 1980 and was found not guilty of one specification of unlawfully kidnapping a female Soldier and unlawfully dragging her by the hair, forcing her into a vehicle, and transporting her for the purpose of assaulting her on 2 November 1980.  

11.  The applicant was found guilty of the additional charges of one specification of wrongfully communicating to the female Soldier a threat to injure her on
2 November 1980; one specification of wrongfully communicating to a male Solider a threat to injure him by pointing a shotgun at him and saying, "get back punk," or words to that effect, on 2 November 1980; and one specification of wrongfully communicating to another male Soldier a threat to injure him by pointing a shotgun and saying, "get back punk," or words to that effect, on
2 November 1980.  

12.  The applicant was found not guilty of one specification of committing an assault upon a male Soldier by pointing a dangerous weapon, a shotgun, at him on 2 November 1980 and one specification of committing an assault upon 

another male Soldier by pointing a dangerous weapon, a shotgun, at him on
2 November 1980.  The applicant was sentenced to confinement at hard labor for 23 months, forfeiture of all pay and allowances, and to be discharged from the Army with a BCD.  The sentence was adjudged on 9 March 1981.  The record of trial was forwarded to The Judge Advocate General of the Army for review.

13.  On 21 October 1981, the United States Court of Military Review set aside the findings of guilty of communicating to two male Soldiers a threat to injure them by pointing a shotgun at them and saying, "get back punk," or words to that effect.  The remaining findings of guilty were affirmed.  Only so much of the sentence as provided for a BCD, 20 months confinement, and total forfeitures were affirmed.

14.  On 8 April 1982, General Court-Martial Order Number 223, was issued reflecting the setting aside of the two abovementioned findings of guilty.  The remaining findings of guilty and only so much of the sentence adjudged on
9 March 1991, as provided for a BCD, forfeiture of all pay and allowances, and confinement at hard labor for 20 months were affirmed and ordered to be duly executed.  

15.  The applicant was discharged on 27 April 1982, in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 11-2, by reason of "as a result of court-martial, other."  He was credited with 4 years, 1 month, and 6 days total active military service.

16.  The applicant provided seven character reference letters that attest that he is a good worker, a nice person, and needs his discharge upgraded for a better life and military benefits.  His also provided a medical assessment letter that lists his medical disabilities.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided, in pertinent part, that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

18.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

19.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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 separation specifically allows such characterization.

20.  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 change a discharge due to matters which should have been raised in the appellate process, 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his BCD.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  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 discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  The evidence of record shows that the applicant was convicted by a Special Court-Martial of wrongfully selling some amount of Phencyclidine and marijuana to two service members who were going to return to Fort Bliss, with the marijuana for the purpose of selling of the Phencyclidine and marijuana to service members.  He was convicted by a General Court-Martial of assault, with intentionally inflicting grievous bodily harm; kidnapping; escaping military police custody; and communicating threats to his victim.  He was discharged pursuant to the sentence of a general court-martial and was issued a bad conduct discharge.  

4.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offense.  He has not provided evidence sufficient to mitigate the character of his discharge.

5.  The applicant contends that, in effect, that he really needs dental and medical benefits for his medical problems.  The seriousness of the offenses for which the applicant was convicted by a general court-martial diminished the quality of his service below that meriting a fully honorable discharge or general discharge.  The Board does not grant relief solely for the purpose of an applicant qualifying for dental and medical benefits.

6.  The applicant's available military records and documentation submitted with his application contain no matters upon which the Board may grant clemency and an upgrade of his BCD to an honorable or general discharge.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  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.



      _________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007647



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ABCMR Record of Proceedings (cont)                                         AR20080007647


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