IN THE CASE OF:	

		BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090020169 


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 honorable.

2.  The applicant states at the time of his discharge he was told his discharge would be automatically upgraded after 2 years; however, the Veterans Service Office informed him he has to request an upgrade of his discharge.  He claims he was young and could not handle situations correctly and he is sorry for his conduct.

3.  The applicant provides the following documents in support of his application:

   a.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the Army National Guard), effective 6 March 1977;

   b.  DD Forms 214 (Report of Separation from Active Duty), effective 
8 November 1975 and 25 April 1979;
   
   c.  North Carolina Criminal Record, dated 19 October 2009 (certified copy);
   
   d.  Self-Authored statement, dated 26 October 2009; and
   
   e.  Four character reference letters of support.



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 6 March 1958.  After prior service in the North Carolina Army National Guard (NCARNG), he enlisted in the Regular Army on the enlistment under review on 7 March 1977.  

3.  The applicant's record shows he held and served in military occupational specialty 11B (Infantryman), and private/E-2 is the highest grade he held during this enlistment.  It further shows he served in Germany for 9 months and earned the Marksman Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary history includes acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 24 June 1977 for disobeying a lawful order. 

5.  On 12 January 1978, a special court-martial (SPCM) found the applicant guilty of violating Articles 128 and 134 of the UCMJ as follows:

	a.  Article 128 (2 Specifications): 

		(1)  Committing an assault upon an active duty member of the United States Army by hitting him on the nose on or about 25 November 1977; and 

		(2)  Committing an assault upon an active duty member of the United States Army by stabbing him in the back with a knife, on or about 3 December 1977. 




	b.  Article 134 (2 Specifications):

		(1)  Communicating a threat to injure an active duty member of the United States Army on or about 26 November 1977; and

		(2)  Communicating a threat to injury an active duty member of the United States Army on or about 5 December 1977.  

   c.  The SPCM sentence was a BCD, confinement at hard labor for 5 months, a forfeiture of $200.00 pay for 5 months, and a reduction to private/E-1.  

6.  The convening authority approved the sentence in Headquarters, 3rd Infantry Division, SPCM Order Number 10, dated 16 February 1978, and suspended that portion in excess of confinement at hard labor for 70 days, a forfeiture of $198.00 pay for 2 months, and reduction to private/E-1 until 22 March 1978 (if not sooner vacated the suspended portion would be terminated without further action). 

7.  On 23 October 1978, the U.S. Army Court of Military Review found the findings of guilty and the sentence correct in law and fact and affirmed the findings of guilty and the sentence in the applicant's case.

8.  Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, SPCM Order Number 21, dated 22 March 1979, directed that Article 71(c ) the sentence as modified be duly executed.  On 25 April 1979, the applicant was discharged with a BCD accordingly.

9.  The DD Form 214 issued to the applicant, on 25 April 1979, shows he was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations), as a result of court-martial after completing 2 years, 1 month, and 7 days of creditable active military service and accruing 96 days of lost time due to being in confinement and absent without leave (AWOL).  It further shows he was issued a BCD and he held the rank of PV1.

10.  The applicant provides a personal statement and four character references from a neighbor, two friends, and an employee.  The applicant's letter and character references all attest to the fact the applicant is a good family man, productive citizen, and that he is of good character.  



11.  The applicant also provides a certified copy of his criminal record which shows traffic violations for reckless driving and driving while impaired on 18 July 1988, for which he was found guilty of the latter offense and sentenced to pay a fine and court cost of $340.00 and 2 years on supervised probation.  He further submits a DD Form 214 for the period 18 August through 8 November 1975 and an NGB Form 22 for the period of 15 May 1975 through 6 March 1977 that show his service is characterized as honorable. 

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge (DD) or BCD.  It stipulates that a Soldier will be given a DD or BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

14.  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 contentions that his good post-service conduct and the length of time since his discharge should support an upgrade of his BCD was carefully considered.  However, there is insufficient evidence to support clemency in this case.  

2.  The available evidence reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  His record reveals no acts of valor or significant achievement and it shows he had a disciplinary history prior to committing the offenses that resulted in his discharge.  

3.  Given the applicant's record of service and the gravity of the offenses for which he was convicted, his post-service good conduct alone does not support clemency in this case.  Additionally, the applicant was over 20 years old when entered the RA enlistment period that is under review and he had previously served in the NCARNG, which would indicate he was sufficiently mature to serve honorably had he chosen to do so.  

4.  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)                                         AR20090020169



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ABCMR Record of Proceedings (cont)                                         AR20090020169



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