IN THE CASE OF:	

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090013649 


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, in effect, that his record of trial should have been evidence enough to show that he was not guilty and that he was assaulted.

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 enlisted in the Regular Army on 16 October 1979.

3.  Special Court-Martial (SPCM) Order Number 110, Headquarters, 3rd Infantry Division, dated 25 July 1981, shows that on 15 April 1981 the applicant was convicted of committing assault on Specialist Four C____ A. R____ by stabbing him in the upper back, right side of abdomen, and lower left buttocks with a knife and did thereby intentionally inflict grievous bodily harm upon him to wit:  deep cuts.  He was sentenced to be reduced to the grade of private (E-1), to forfeit $334.00 pay per month for 6 months, to be confined at hard labor for 6 months, and to be discharged with a BCD.  

4.  The sentence was approved on 25 July 1981.

5.  On 4 March 1982, 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 19 July 1982, the appropriate authority ordered the sentence duly executed.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 10 September 1982 under the provisions of paragraph 11-2 of Army Regulation 635-200 (Personnel Separations) by reason of court-martial, other.  This document also shows the applicant's character of service as bad conduct.  At the time of his discharge the applicant had completed 2 years, 4 months, and 7 days of net active service.  This document further shows the applicant had 200 days of lost time under Title 10, U.S. Code, section 972, from 15 February 1981 through 2 September 1981.

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 assaulting Specialist Four 
C____ A. R____ by stabbing him in the upper back, right side of abdomen, and lower left buttocks with a knife and did thereby intentionally inflict grievous bodily harm upon him.  The evidence of record shows the applicant was convicted by an SPCM and he received a BCD.  Trial by SPCM 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 assaulted.  However, there is no evidence nor did he submit any evidence that shows he was assaulted when he stabbed Specialist Four C____ A. R____.  In any case, it appears that this issue was not raised during the appellate process or, if it was, that it was found not to be mitigating.  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)                                         AR20090013649



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1