IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20090021144 


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 1980 bad conduct discharge be upgraded.

2.  The applicant states he was stationed at Fort Hood, Texas when he was attacked by another Soldier who hit him in the face with a bottle.  He states he had previously been harassed constantly.  He notes he attempted to have this issue addressed by members of his chain of command but to no avail.

3.  The applicant states since that incident he has suffered tremendously and lived in fear of someone sneaking up behind him to do bodily harm.  He maintains the Army had an obligation to protect him and that incident was the basis for his continual brushes with the law, his incarceration, and subsequent use of drugs.  He states he longs for a better life and hopes “the VA can give me the help that I need to start me on the road to recovery and a better life.”

4.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board indicate the applicant enlisted in the Regular Army on 20 April 1978.  He was 18 years old at the time.  He successfully completed training and in August 1978 was assigned to Fort Hood, Texas as a motor transport operator.  By August 1979 he had been advanced to pay grade E-3.

3.  On 22 January 1980, the applicant was convicted by a general court-martial of two specifications of aggravated assault (shot at two different enlisted Soldiers with a shotgun in October 1979 at Fort Hood).  The applicant had been confined since 28 October 1979.

4.  The court sentenced the applicant to forfeiture of all pay and allowances, reduction to pay grade E-1, confinement for 1 year, and a bad conduct discharge.  The convening authority approved the sentence and after an appellate review directed the execution of the discharge.

5.  The applicant was released from confinement on 28 October 1980 and placed on excess leave the following day.

6.  The applicant's DD Form 214 (Armed Forces of the United States Report      of Transfer or Discharge) shows the Army discharged the applicant on              22 December 1980 under the provisions of paragraph 11-2, of Army Regulation 
635-200 (Personnel Separations) by reason of court-martial.  This form further lists the applicant's character of service as “bad conduct.”

7.  References:

   a.  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.

	b.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

	c.  Army Regulation 635-200 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

	d.  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.  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.

2.  The applicant has provided no evidence to substantiate his allegations that he was attacked or that his commanders failed to protect him.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations.  Therefore, there is no legal basis for granting the applicant's request for relief.

4.  The applicant's desire for veterans' benefits is understandable.  However, it is not sufficient to mitigate the offenses committed during his military service.

5.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20090021144





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ABCMR Record of Proceedings (cont)                                         AR20090021144



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