IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100008676 


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.  He does not make any statements.

3.  He provides no additional documentation 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.  His military record shows he enlisted in the Regular Army in pay grade E-1 on 17 July 1980 for 4 years.  He completed training and he was awarded military occupational specialty 51C (Structures Specialist).  He was promoted to pay grade E-4 on 14 September 1982.
3.  On 3 August and 15 December 1981, he accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for unlawfully striking a female on 14 May 1981 and disobeying a lawful written order on 13 November 1981.

4.  In July 1983, he was convicted by a special court-martial of one specification of aggravated assault on his wife on 22 May 1983, one specification of being absent without leave (AWOL) from 25 May to 7 June 1983, and two specifications of assault on persons in the execution of military policies duties on 28 June 1983.  He was sentenced to a reduction to pay grade E-1, a forfeiture of $200.00 pay per month for 4 months, confinement at hard labor for 4 months, and to be discharged from the Army with a bad conduct discharge.  The sentence was adjudged on 11 July 1983 and he was placed in confinement.

5.  The convening authority approved the sentence on 27 October 1983.  He was reduced to pay grade E-1 on 11 November 1983.

6.  On 24 September 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  On 22 February 1985, the U.S. Army Court of Military Appeals denied his petition for review of his case.

8.  On 12 September 1985, his bad conduct discharge was ordered to be duly executed.  He was discharged on 12 September 1985 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial, other.  He was credited with 4 years, 8 months, and 14 days of net active service and time lost from 11 July 1983 to 20 October 1983 due to confinement.

9.  There is no evidence he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

11.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

13.  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.  The evidence shows the applicant was convicted by a special court-martial of aggravated assault on his wife, AWOL, and assault on two military police officers in the execution of their duties.  He was discharged pursuant to the sentence of a special court-martial and he was issued a bad conduct discharge after the sentence was affirmed.

2.  He provided no evidence to show that his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.  He provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations with due process.

3.  Trial by special court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which the applicant was convicted.  His offenses warranted this punishment.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and 

absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20100008676



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)