IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100000251 


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 under honorable conditions discharge.

2.  The applicant states he was young and immature during his time of service.  He was talked into experimenting with drugs which caused him to act very inappropriately.  All he remembers is being in jail and being told he had hit an officer, for which he is truly sorry.  He is now 50 years of age and has a wonderful family including three children.  He is receiving social security disability.  He only wishes he could turn back time and then he would be retiring from the military instead of having to plead for an upgrade.

3.  The applicant provides no additional documentation.

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 record shows he enlisted in the Regular Army in pay grade E-1 on 19 July 1978 for 3 years.  On the date of his enlistment in the Regular Army he was 18 years and 10 months of age.  He completed training and was awarded military occupational specialty 13B (cannon crewman).  He served in Germany from 21 December 1978 to 11 September 1979.  He was promoted to pay grade E-3 on 1 May 1979.

3.  On 19 September 1979, he was convicted pursuant to his pleas by a special court-martial of two specifications of unlawfully striking a child and assaulting a German national on 29 July 1979.  He was sentenced to a reduction to pay grade E-1, a forfeiture of $279.00 per month for 3 months, confinement at hard labor for 3 months, and to be discharged from the Army with a BCD.  The sentence was adjudged on 19 September 1979 and approved on 31 October 1979.

4.  On 25 February 1980, the U.S. Army Court of Military Review affirmed the finding of guilty and the sentence.  There is no evidence he petitioned the U.S. Court of Military Appeals for review of his conviction and sentence.

5.  On 12 June 1980, the convening authority ordered his sentence to a BCD, forfeiture, and reduction to pay grade E-1 duly executed.  It was noted the portion of the sentence pertaining to confinement had been served.

6.  The applicant was discharged on 1 July 1980 in pay grade E-1 under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 11-2, as a result of a special court-martial and issued a BCD.  He was credited with1 year, 8 months, and 23 days of net active service.

7.  The applicant's available records contain no documented evidence of acts of valor or achievement warranting special recognition.

8.  On 17 December 1986, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

9.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-2 specified that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the sentence affirmed before it could be duly executed.

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 was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for 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 change a court-martial 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 view of the circumstances in this case, he is not entitled to an upgrade of his BCD.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence of record shows he was convicted by a special court-martial for striking and assaulting a child and a German national.  He was discharged pursuant to the sentence of a special court-martial and was issued a BCD.

3.  His contentions that he was young and immature during his term of service have been acknowledged.  He was 18 years and 10 months of age when he enlisted in the Regular Army.  He served from his enlistment in July 1978 until August 1979 without incident.  There is no evidence the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

4.  Contrary to his contentions, he provided no evidence or argument to show his discharge was unjust and should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  He has not provided evidence sufficient to mitigate the character of his discharge.

5.  The Board is empowered to change the characterization of and reason for the discharge if clemency is determined to be appropriate.  His record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his 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)                                         AR20100000251



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ABCMR Record of Proceedings (cont)                                         AR20100000251



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