BOARD DATE: 8 July 2010
DOCKET NUMBER: AR20090020929
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 at least a general discharge.
2. The applicant states that he does not claim innocence in his wrong doing, but he has since changed and realizes his wrong. He goes on to state that he feels that after all of this time he should not continue to suffer with this discharge and requests that the Board favorably consider his request.
3. The applicant provides no additional documents with 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 applicants 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 applicants 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 3 July 1955 and enlisted in the Regular Army in Brooklyn, New York on 25 August 1978, for a period of 3 years, training as an administrative specialist, and assignment to Korea. He completed his one-station-unit training at Fort Jackson, South Carolina and was transferred to Korea on 30 January 1979. He was advanced to the pay grade of E-3 on 25 August 1979.
3. He completed his tour in Korea on 24 January 1980 and was transferred to Fort Campbell, Kentucky on 10 March 1980.
4. On 8 September 1980, nonjudicial punishment (NJP) was imposed against him for assaulting another Soldier with his fist. His punishment consisted of confinement in the correctional custody facility (CCF) for 90 days and extra duty.
5. On 15 January 1981, he was convicted by a special court-martial of three specifications of assaulting Soldiers by striking and kicking them and one specification of assaulting a Soldier by pouring a caustic chemical on her. His sentence consisted of a reduction to the pay grade of E-1, confinement at hard labor for 3 months, a forfeiture of pay, and a BCD.
6. On 12 May 1981, the United States Army Court of Military Review affirmed the findings and sentence as approved by the court-martial convening authority.
7. On 22 September 1981, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He had served 2 years, 9 months, and 3 days of total active service and had approximately 115 days of lost time due to confinement.
8. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 20 October 1982 and was granted a personal appearance before the ADRB Travel Panel in New York on 19 October 1983. After reviewing all of the testimony and evidence in his case, the ADRB found no factors in mitigation sufficient to overcome the seriousness of the charges and voted unanimously to deny his request on 16 November 1983.
9. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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. Trial by court-martial was warranted by the gravity of the offenses charged. 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.
2. The type of discharge directed and the reasons therefore are appropriate considering the available facts of the case.
3. The applicants contentions have been noted; however, he has failed to show through evidence submitted with his application or the evidence of record, sufficient evidence to warrant an upgrade of his discharge.
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.
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