DOCKET NUMBER:  AR20090002441 


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 be upgraded.

2.  The applicant states, in effect, that the charges or at least some of the things presented against him were inaccurate.  He contends that his discharge is unfair because he was arrested for defending himself (self defense), that he was not able to fully defend himself in the presence of his superiors, and that he is disabled and needs assistance (i.e., medical attention/benefits).

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 enlisted in the Regular Army on 13 October 1976 for a period of 4 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (infantryman).

3.  On 3 June 1977, nonjudicial punishment was imposed against the applicant for committing assault upon a Soldier by chasing him with a razor.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay, extra duty, and restriction. 

4.  On 19 November 1977, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation (purchasing items in excess of prescribed limits).  His punishment consisted of a reduction to E-1 and a forfeiture of pay. 

5.  On 31 January 1978, contrary to his pleas, the applicant was convicted by a special court-martial of violating a lawful general regulation (two specifications), aggravated assault, and breaking restriction.  He was sentenced to a forfeiture of $100.00 pay per month for 3 months, to be confined at hard labor for 3 months, and to be discharged from the service with a bad conduct discharge.  On
3 March 1978, the convening authority approved the sentence.

6.  On 14 July 1978, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  On 20 September 1978, nonjudicial punishment was imposed against the applicant for disobeying a lawful order and failure to repair.  His punishment consisted of a forfeiture of pay and correctional custody for 30 days. 

8.  On 14 December 1978, the convening authority ordered the bad conduct discharge to be executed.

9.  Accordingly, the applicant was discharged with a bad conduct discharge on 
28 December 1978 under the provisions of Army Regulation 635-200, chapter 
11, as a result of a court-martial.  He had served a total of 2 years and 3 days of creditable active service with 73 days of lost time due to confinement. 

10.  On 1 April 1985, the Army Discharge Review Board denied the applicant’s request for an honorable discharge.  

11.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

12.  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.  

13.  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.

14.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that the charges or at least some of the things presented against him were inaccurate and that his discharge is unfair because he was arrested for defending himself (self defense) relate to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his special court-martial and appellate proceedings.

2.  A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs benefits.
 
3.  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 characterizes the misconduct for which the applicant was convicted.

4.  The applicant's record of service included three nonjudicial punishments, one special court-martial conviction, and 73 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

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)                                         AR20090002441



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ABCMR Record of Proceedings (cont)                                         AR20090002441



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