IN THE CASE OF:	  

		BOARD DATE:	 7 October 2010 

		DOCKET NUMBER:  AR20100000256 


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 upgrade of his bad conduct discharge to an honorable discharge.

2.  The applicant states he was involved in an altercation on base and feels the punishment was extraordinarily severe relative to the infraction.

3.  The applicant provides the following:

* A self-authored statement, undated
* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 5 August 1996
* A copy of his orders, dated 31 July 1996
* A letter of clearance, dated 18 December 2009
* Six statements of support, undated

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 records show he enlisted in the Regular Army on 8 September 1987.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  The highest pay grade he held was private first class (PFC)/E-3.
 
3.  His records show he served at Fort Ord, CA, in his MOS from January 1988 to September 1990.  He served in an imminent danger area (Panama) with his unit from 20 December 1989 to 31 January 1990.

4.  His records show he was awarded the National Defense Service Medal, Armed Forces Expeditionary Medal, Army Service Ribbon, and the Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.

5.  On 25 September 1990, at Fort Ord, CA, he pled not guilty at a general court-martial to one specification of assault intentionally inflicting grievous bodily harm and one specification of assault consummated by battery, and guilty to one specification of assault consummated by battery on 16 June 1990.  He was found guilty of one specification of assault consummated by battery and sentenced to a reduction to private (PV1)/E-1, forfeiture of all pay and allowances, confinement for 3 months, and a bad conduct discharge.

6.  On 18 December 1990, he went absent without leave (AWOL) prior to execution of the bad conduct discharge.  He was dropped from the rolls (DFR) on 21 January 1991.

7.  On 19 February 1991, the convening authority approved the sentence and, except for the forfeiture of all pay and allowances, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.
 
8.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

9.  On 14 May 1991, he was apprehended by civilian authorities on a charge of false identification.  On 15 May 1991, he was returned to military control and held at the U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox (USAARMC & Fort Knox), Fort Knox, KY.

10.  Headquarters, 7th Infantry Division (Light), Fort Ord, CA, General Court-Martial Order Number 46, dated 7 August 1991, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

11.   On 5 August 1996, he was discharged from the Army.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial, with a bad conduct discharge.  This form further shows he completed a total of 8 years, 3 months, and 18 days of creditable military service and he had 224 days of lost time.

12.  In a self-authored statement, the applicant states in effect, he:
	
* Grew up without a father figure
* Is a veteran of “Just Cause”
* Made mistakes while on active duty but has grown since then
* Has been working since his discharge
* Attends college and is pursuing a pharmacist degree
* Has not been in trouble since his discharge
* Has been a great father to his children and friend to many

13.  In six statements of support his two children, college professor, and two friends all state in effect, he is a good parent and a mature and responsible person.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the policy 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.

15.  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.


16.  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 request that his bad conduct discharge be upgraded to an honorable discharge was carefully considered.

2.  The evidence of record shows his trial by a general 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 characterized the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  Although the applicant's post-service conduct has been noteworthy, it does not mitigate the fact that he was convicted of assault during his military service. After a review of the applicant’s record of service, it is clear that his service did not meet the criteria for an honorable discharge.  Therefore, there is insufficient basis to upgrade his discharge to an honorable 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)                                         AR20100000256





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ABCMR Record of Proceedings (cont)                                         AR20100000256



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