IN THE CASE OF:	  

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090012400 


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 an honorable discharge.

2.  The applicant states that the judge advocate stated he acted in self defense but used too much force in defending himself.

3.  The applicant provides a self-authored statement 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 record shows that he was inducted into the Army of the United States on 16 July 1970.

3.  General Court-Martial (GCM) Order Number 48, Headquarters, 101st Airborne Division (Airmobile), dated 15 December 1971, shows that on 9 October 1971, the applicant was convicted of committing an assault on Specialist R. L. S____ by cutting him on the shoulder, neck, and back with a means likely to produce grievous bodily harm, to wit:  a knife.  He was sentenced to be discharged with a BCD, to forfeit $125.00 per month for 9 months, and to be confined at hard labor for 9 months.  The sentence was adjudged on 9 November 1971.

4.  The sentence was approved on 15 December 1971.

5.  On 27 January 1972, the U.S. Army Court of Military Review affirmed the findings of guilty, found the sentence correct in law and fact, and affirmed the sentence.

6.  On 24 April 1972, the appropriate authority ordered the sentence duly executed.

7.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged on 22 May 1972 under the provisions of paragraph 11-1b of Army Regulation 635-200 (Personnel Separations) by reason of court-martial.  This document also shows the applicant's character of service as under other than honorable conditions.  At the time of his discharge the applicant had completed 1 year, 3 months, and 23 days of net active service.  This document further shows the applicant had 196 days of lost time under Title 10, U.S. Code, section 972, from 9 November 1971 through 22 May 1972.

8.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552(f), the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction nor is the Board authorized to take action with respect to court-martial and related administrative records pertaining to court-martial cases, except as described below.  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.  The Board also has the limited authority to correct records to accurately reflect appellate actions.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.
10.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  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 was tried and convicted of cutting Specialist R. L. S____ on the shoulder, neck, and back with a means likely to produce grievous bodily harm.  The evidence of record shows the applicant was convicted by a GCM and he received a BCD.  Trial by GCM was warranted by the serious nature of the offense for which the applicant was charged and convicted.  The sentence is commensurate with the misconduct for which he was convicted.  As a result, clemency is not warranted in this case.

2.  The applicant states that he was acting in self defense but used too much force to defend himself.  However, there is no evidence nor did he submit any evidence that shows he was acting in self defense when he assaulted Specialist R. L. S____.  It does not now appear to be a mitigating factor.  In view of the circumstances in this case, the applicant has not established a basis for clemency.  He has not shown error, injustice, or inequity for the relief he now requests.

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's record of service, the seriousness of the offense for which he was convicted, and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

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)                                         AR20090012400



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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