BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090012842 


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 dishonorable discharge be upgraded to a general discharge. 

2.  The applicant states, in effect, that he was a young man under a lot of pressure in a combat company.  He contends that he had an argument with another Soldier, that he was jumped by several Soldiers, and that he was just trying to defend himself.  He indicates that the only way to protect himself from being killed by the Soldiers was to detonate a concussion grenade.   

3.  The applicant provides no 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 was born on 12 July 1950.  He was inducted into the Army of the United States on 30 April 1970.  He successfully completed basic combat training and advanced individual training in military occupational specialty 64A (motor transport operator).

3.  On 13 January 1971, nonjudicial punishment was imposed against the applicant for using provoking words.  His punishment consisted of a forfeiture of pay. 

4.  On 24 June 1971, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 16 June 1971 to 23 June 1971.  His punishment consisted of a forfeiture of pay. 

5.  The applicant served in Vietnam from 30 June 1971 to 24 November 1971. 

6.  On 24 November 1971, in accordance with his pleas, the applicant was convicted by a general court-martial of assault and five specifications of committing assault with intent to commit murder by detonating a concussion grenade in the room the five Soldiers were located in.  He was sentenced to be dishonorably discharged from the Army, to forfeit all pay and allowances, to be confined at hard labor for 15 years, and to be reduced to E-1.  On 11 January 1972, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 5 years, and a reduction to E-1.   

7.  The decision of the U.S. Army Court of Military Review is not available.  However, on 18 May 1973, the convening authority's action indicates that the findings of guilty of Charge 1 and its specification (assault) were affirmed and that only so much of the findings of guilty of Charge II and its five specifications was affirmed as included the lesser included offense of aggravated assault with a dangerous weapon likely to produce death or grievous bodily harm in the manner, times, and places and upon the victims as alleged and that only so much of the sentence as provided for a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 3 years and 6 months, and reduction to E-1 was affirmed.  The convening authority ordered the dishonorable discharge to be executed.
 
8.  Accordingly, the applicant was discharged with a dishonorable discharge on 
4 June 1973 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial.  He had served a total of 1 year, 6 months, and 18 days of creditable active service with 565 days of lost time due to AWOL and confinement. 

9.  On 18 December 1973, the Secretary of the Army remitted the unexecuted portion of the applicant's sentence to confinement.

10.  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 or dishonorable 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.

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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  The applicant was almost 20 years old when he was inducted and he successfully completed basic combat training and advanced individual training.  In addition, he served over 18 months of service prior to his general court-martial conviction.  

2.  The applicant’s contentions that he was just trying to defend himself relates to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his general court-martial and appellate proceedings.
  
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 two nonjudicial punishments, one general court-martial conviction for serious offenses, and 565 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general 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)                                         AR20090012842





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ABCMR Record of Proceedings (cont)                                         AR20090012842



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