BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090018252 


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 is requesting an upgrade so he may receive Department of Veterans Affairs benefits.  He states it has been almost 27 years since his discharge, and he has matured and is trying to move on and better himself.

3.  The applicant provides no additional documents.

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 military records show he enlisted in the Regular Army on 1 August 1978.  He was awarded the military occupational specialty of food service specialist.  

3.  Records show that the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions on 10 August 1979, 4 October 1979, and 17 January 1980; once for failing to go to his appointed place of duty and twice for being absent without leave.

4.  Special Court-Martial Order Number 110, dated 13 November 1980, shows the applicant was arraigned and tried for being disrespectful in language towards his superior noncommissioned officer, assaulting that same superior noncommissioned officer by swinging at him with his fist, and aggravated assault by picking up a butcher knife and raising his hand to swing at that same superior noncommissioned officer.  He was found guilty of the charges and was sentenced to be discharged from the service with a bad conduct discharge.  The sentence was adjudged on 12 September 1980.

5.  Special Court-Martial Order Number 328, dated 16 June 1982, shows his sentence to a bad conduct discharge was affirmed.  It shows the appellate review was completed and the sentence was ordered duly executed.

6.  Accordingly, on 27 July 1982, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 11-2, as a result of court-martial.  The DD Form 214 the applicant was issued shows he completed 3 years, 9 months, and 13 days of active service.  Item 29 (Dates of Time Lost during This Period) of this document contains the entry "Under 10 USC 972 800912-801125."

7.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

9.  Army Regulation 635-200, paragraph 11-2, provides 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.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's commander imposed NJP on three occasions and he was issued a bad conduct discharge pursuant to the approved sentence of a special court-martial conviction for being disrespectful in language towards his noncommissioned officer, assaulting that same noncommissioned officer, and by picking up a butcher knife and raising his hand to swing at his noncommissioned officer.  The appellate review was completed and the affirmed sentence ordered duly executed.  Conviction and discharge were affected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  The applicant's entire military record was taken into consideration and given the seriousness of the offenses his service is appropriately characterized.

3.  Any redress by this ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR 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 undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  Properly issued discharges are not upgraded solely for the purpose of establishing eligibility for other programs or benefits.

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to 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)                                         AR20090018252



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ABCMR Record of Proceedings (cont)                                         AR20090018252



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