IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20090000068 


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 that his bad conduct discharge (BCD) be upgraded to a general under honorable conditions discharge.

2.  The applicant states that:

	a.  he had a little too much to drink one night and locked his room key in his room;

	b.  he went to the charge of quarters (CQ) and the Private First Class (PFC) on duty got racial with him; the Sergeant in charge stepped in and told the PFC to open the door;

	c.  after the door was opened the PFC punched the applicant in the back of the head and the applicant chased the PFC down the hall;

	d.  the Sergeant stepped in between the applicant and the PFC and the applicant accidently struck the Sergeant in the arm and the applicant was charged with assault;

	e.  he was young at the time and thought his lawyer had his best interest at heart and took his advice;

	f.  now that he is more experienced, he would have fought the charge due to the racial nature of the incident, and he would have been given only minor punishment.
4.  The applicant provides no additional documentation in support of this case.

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 was born on 4 December 1962.  He enlisted in the Regular Army on 26 February 1980 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 19E (Armor Crewman).

3.  On 7 May 1980, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a noncommissioned officer (NCO).

4.  Evidence of record shows that the applicant was classified absent without leave (AWOL) for the period 8 July 1980 through 29 July 1980.

5.  On 15 September 1980, the applicant received NJP under Article 15, UCMJ for failing to be at his appointed place of duty.

6.  On 18 March 1981, the applicant received NJP under Article 15, UCMJ for failing to be at his appointed place of duty.

7.  On 10 June 1981, the applicant received NJP under Article 15, UCMJ for two specifications of failing to be at his appointed place of duty and disobeying a lawful order from a NCO.

8.  On 10 November 1981, the applicant was convicted, in accordance with his pleas, by a special court-martial of being AWOL for the period 13 July 1981 through 31 August 1981 and two specifications of committing an assault .  His sentence consisted of a forfeiture of $360.00 per month for three months (the convening authority approved the sentence but deferred the forfeitures until the sentence was ordered into execution) and a BCD.  

9.  On 23 February 1982, 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 findings and sentence.

10.  Headquarters, U.S. Army Armor Center and Fort Knox Special Court-Martial Order Number 144, dated 29 June 1982, directed that the bad conduct discharge be executed.

11.  On 23 July 1982, the applicant was discharged from the Army with a bad conduct discharge under the provisions of chapter 3 of Army Regulation 
635-200 (Personnel Separations), by reason of court-martial.  He completed 
2 years and 10 days of creditable active service with 140 days of lost time due to AWOL and confinement.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

13.  In accordance with Title 10 of the U. S. 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he 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.  The applicant's entire record of service, which included numerous instances of misconduct, and age factor were considered in this case.  However, given the seriousness of the offenses for which he was convicted, it is determined that these factors are not sufficiently meritorious or mitigating to warrant the relief requested.

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)                                         AR20090000068





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ABCMR Record of Proceedings (cont)                                         AR20090000068



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