BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090017595 


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 to a general discharge.

2.  The applicant states he served two honorable enlistments in the U.S. Army for a total of 5 years.  He adds that during his third enlistment he became a heavy drinker of alcoholic beverages which altered his cognitive functioning.

	a.  He states he instructed his stepchildren on many occasions to wash their dishes after eating.  On one occasion after returning home after drinking, he discovered that his stepchildren had neglected to wash the dishes they had used.  He adds he administered a light whipping with a cord; however, no permanent harm was done.

	b.  He acknowledges that his actions did not reflect the way he was trained by the U.S. Army.  However, he does not believe he should have been given a bad conduct discharge.

3.  The applicant provides six character-reference letters in support of his application.  Three of the letters are from supervisors of Dining Services, Towson University, Towson, MD, and three are from co-workers.  The letters show they have observed the applicant working in Towson University Dining Services for 15 years and 10 years as lead cook.  They attest to the applicant's personal responsibility, professional dedication, and willingness to mentor others.



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.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant enlisted and entered active duty in the Regular Army (RA) for a period of 2 years on 30 September 1971 and he was honorably discharged on 30 July 1973 to immediately reenlist.  He had completed 1 year, 10 months, and 1 day of net active service.

3.  A DD Form 214 (Report of Separation from Active Duty) shows the applicant reenlisted in the RA on 31 July 1973 and he was honorably discharged on 28 October 1976 to immediately reenlist.  He completed 3 years, 2 months, and 28 days of net active service during this period.

4.  The applicant reenlisted in the RA on 29 October 1976 and again on 29 May 1981.

5.  Headquarters, 2nd Battalion, 37th Armor, letter, dated 27 July 1981, subject:  Letter of Reprimand, shows the applicant's commander officially reprimanded him for being absent from his place of duty for approximately 18 hours.

6.  On 22 April 1983, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty and for willfully breaking restriction on three occasions.  The punishment consisted of reduction to the grade of E-4, 45 days of extra duty, and 45 days of restriction.

7.  At a general court-martial in May 1983, the applicant pled guilty to the charge of violation Article 128 of the UCMJ for three specifications as follows:

	a.  committing an assault upon M____ S____, a male child under the age of 16 years, by whipping him with an electrical cord on the abdomen, back, and legs with a means likely to produce grievous bodily harm and by kicking him in the stomach with a means likely to produce grievous bodily harm;

	b.  committing an assault upon C____ S____, a female child under the age of 16 years, by whipping her with two electrical cords about her back, leg, face, eyes, and arms with a means likely to produce grievous bodily harm; by kicking her in her abdomen with a means likely to produce grievous bodily harm; and by striking her on the head with a whiskey bottle with a means likely to produce grievous bodily harm; and

	c.  committing an assault upon M____ S____ by whipping him with an electrical cord on the arm and back with a means likely to produce grievous bodily harm.

	d.  He was found guilty of the charge and its three specifications.

	e.  He was sentenced to be reduced to the grade of E-1, confinement at hard labor for 6 months, and a bad conduct discharge.

8.  On 13 June 1983, the convening authority approved the sentence.  He also directed that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

9.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 9 September 1983, shows the applicant was evaluated and his behavior was normal, he was fully alert and oriented, and his thinking process was clear, thought process normal, and memory good.  The medical official found the applicant had the mental capacity to understand and participate in separation proceedings and that he was mentally responsible.

10.  On 16 September 1983, the unexecuted portion of the approved sentence to confinement at hard labor for 6 months was remitted.

11.  On 2 November 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence as approved.  On 30 January 1984, the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

12.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged on 10 February 1984 with a bad conduct discharge.  At the time of his discharge he had completed 2 years, 4 months, and 6 days of net active service during the period under review.
13.  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 ABCMR 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.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed.

	b.  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 contends that his bad conduct discharge should be upgraded because he became a heavy drinker of alcoholic beverages while serving in the U.S. Army which altered his cognitive functioning.  He also contends that his post-service behavior demonstrates his personal commitment to his family and community.

2.  Records show the applicant was evaluated by a medical official who found that his thinking process was clear, thought process normal, and he was mentally responsible.  While it is acknowledged that the consumption of alcoholic beverages temporarily impairs an individual's cognitive ability, it does not excuse the applicant's actions for the offenses for which he was convicted.

3.  The applicant's post-service conduct and work ethic were considered; however, they are not sufficiently mitigating to warrant relief.

4.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

5.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

6.  After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency is not appropriate.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090017595



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ABCMR Record of Proceedings (cont)                                         AR20090017595



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