IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20090020676 


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 his bad conduct discharge (BCD) be upgraded to a general or honorable discharge.

2.  The applicant states the following:

* he served the majority of his term honorably
* he had a medical problem with his knee and was going be separated from the Army prematurely due to his knee injury 
* the Department of Veterans Affairs (VA) cannot grant him service connection for his injuries due to the character of his discharge
* he continues to have limitations from his knee injury and the BCD looms over him as he looks for employment

3.  The applicant provides five character references and a DD Form 457 (Investigating Officer's Report), dated 11 January 1999, 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 enlisted in the Regular Army on 6 November 1996.

3.  On 6 May 1999, the applicant was found guilty contrary to his pleas by a general court-martial of simple assault and assault consummated by battery by inflicting grievous bodily harm.  He was sentenced to confinement for 12 months and a BCD.

4.  On 8 February 2000, the convening authority approved the sentence and, except for that portion extending to a BCD, ordered it executed.

5.  On an unknown date, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  The U.S. Court of Appeals for the Armed Forces denied the applicant's petition for review on 22 April 2002.  On 20 February 2003, the BCD was ordered to be executed.

6.  The applicant was discharged on 14 April 2003 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV, as a result of court-martial.  He completed 5 years, 7 months, and 9 days of creditable active service with 300 days of lost time due to confinement.

7.  The applicant provided five character references in support of his claim which describe him as follows:

* great father, uncle, and friend
* loves to help all the community kids with their sports
* well-respected person; well-educated and a hard worker
* intelligent, capable, dedicated, and personable
* good work ethics, energetic, creative, compassionate

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 states that a Soldier will be given a BCD 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.

9.  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.

10.  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.

11.  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 contends he served the majority of his term honorably.

2.  The applicant's service record shows he was convicted by a general court-martial of simple assault and assault consummated by battery by inflicting grievous bodily harm.

3.  The applicant's contentions regarding his knee injury are acknowledged.  However, he provided no evidence other than his self-authored statement to substantiate his claims.

4.  The applicant's character references were considered.  However, they are insufficiently mitigating to warrant relief in this case.

5.  Based on the seriousness of the misconduct for which the applicant was convicted, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis to grant the relief requested.

6.  The applicant's trial by court-martial was warranted by the gravity of the offense charged.  The 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.

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)                                         AR20090020676



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ABCMR Record of Proceedings (cont)                                         AR20090020676



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