IN THE CASE OF:	  

		BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20100009569 


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.  

2.  The applicant states the following:

* He has made positive changes in his life
* He was well-respected and a reliable Soldier
* He served proudly and comes from a long line of military family members who all served the armed forces honorably
* He showed poor judgment and bad decision making
* He completed college courses while confined at Fort Sill, OK and participated in church activities
* He is now attending Missouri College in pursuit of his bachelor’s degree in Human Resource Management
* He has demonstrated exemplary post-service conduct

3.  The applicant provides the following documents in support of his application:

* Four character references
* Certificate of Academic Excellence
* Certificate for Completion of “Thought Patterns for a Successful Career”
* Certificate of President’s Honor Roll
* Four Certificates for Completion of the Disciples Cross-Life Course Christian Growth
* Certificate of Completion of the Leadership Development Program Winter 2008
* Orders for award of the Army Good Conduct Medal
* Award certificate for the Army Commendation Medal

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 enlisted in the Regular Army on 19 August 1999.  

3.  On 16 July 2004, the applicant was found guilty by a general court-martial of committing the following offenses:

* Assault upon Mr. K.L.R. by striking him in the head with a glass object and did thereby intentionally inflict grievous bodily harm upon him
* Unlawfully strike a private first class (PFC) in the face with his closed fist
* Willfully and wrongfully exposed himself in an indecent manner to public view
* Orally communicate indecent language to a specialist (SPC) 

4.  He was sentenced to reduction to private, E-1, forfeiture of all pay and allowances, confinement for 5 years, and to be discharged with a BCD.  The convening authority approved the sentence.  

5.  The findings of guilty were affirmed on an unknown date.  The BCD was ordered to be executed on 4 August 2006.  

6.  The applicant was discharged on 28 December 2006 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3 as a result of 
court-martial.  He completed a total of 4 years, 10 months, and 28 days of creditable active service with approximately 2 years, 5 months, and 11 days of lost time.  

7.  The applicant provided character references from his family and friends who described his qualities as a leader, role model, and productive citizen in the community.  

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

9.  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.  

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 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.

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 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 contentions in regard to his post-service conduct are noted.  However, the evidence of record does not indicate that an error or injustice exists in this case.  

2.  The applicant's service record shows he was convicted by a general 
court-martial of assault, unlawfully striking a PFC, willfully and wrongfully exposing himself in an indecent manner to public view, and orally communicating certain indecent language to a SPC.  

3.  Based on the seriousness of the misconduct for which the applicant was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the applicant's requested relief.

4.  The applicant's 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 and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

5.  The applicant’s character references were considered; however, these documents are insufficient as a basis to grant the relief requested.  

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)                                         AR20100009569





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)