IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100009677 


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 an upgrade of his bad conduct discharge to a general discharge.

2.  The applicant states he was not appropriately represented [during the proceedings leading to his discharge], a sergeant harassed and assaulted him, and his actions were in self-defense.  He further states, in effect, he desires that his discharge be changed for the purpose of seeking medical benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  After periods of service in the Army National Guard and U.S. Army Reserve, the applicant enlisted in the Regular Army on 16 April 1981.  He was trained in and awarded military occupational specialty 12B (Combat Engineer).  

3.  The applicant's records show he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following:  

	a.  On 12 June 1981, for directing an obscene gesture to members of a platoon as they marched by.  His punishment was a forfeiture of $116 pay for 
1 month and 14 days of restriction and extra duty.

	b.  On 9 December 1981, for being disrespectful in language towards a superior noncommissioned officer (NCO) and willfully disobeying a lawful order from a superior NCO.  His punishment was correctional custody for 30 days.  The applicant's appeal of the punishment was denied.  The DA Form 2627 (Record of Proceedings under Article 15, UCMJ) documenting this punishment indicates there was a continuation sheet.  This sheet is not in the available record.

	c.  On 31 December 1981, for absenting himself from his unit without authority on 21 and 22 December 1981.  His punishment was reduction to private/E-1 and a forfeiture of $50 pay.  

	d.  On 11 August 1982, for being absent without leave (AWOL) from on or about 13 July to 19 July 1982.  His punishment was forfeiture of $100 and extra duty for 14 days.

	e.  On 26 October 1982, for failing to go at the time prescribed to his appointed place to duty on nine occasions during the month of August 1982.  His punishment was extra duty for 45 days.  

4.  On 4 November 1982, the applicant voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  The request shows he had been charged under the UCMJ with violations authorizing the imposition of a bad conduct or dishonorable discharge.  He was charged with the following:

* violation of Article 86, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 31 August 1982
* violation of Article 91, UCMJ, for unlawfully striking a superior NCO on 
4 and 31 August 1982 and being disrespectful in deportment towards a superior NCO on 4 August 1982
* violation of Article 92, UCMJ, for failing to obey a lawful order on 
27 August 1982

5.  The applicant's chain of command recommended disapproval of the request for discharge for the good of the Service.  On 5 November 1982, the separation authority disapproved the request.

6.  Special Court-Martial Order Number 29, Headquarters, Fort Devens, MA, dated 17 December 1982, shows the applicant pleaded guilty to unlawfully striking a superior NCO and failing to obey a lawful order and was found guilty of both charges.  He was sentenced to be discharged from the service with a bad conduct discharge.  

7.  Special Court-Martial Order Number 23, same headquarters, dated 
8 November 1983, shows the sentence was affirmed and ordered to be duly executed.  On 8 November 1983, the applicant was discharged accordingly.  

8.  In his statement, the applicant indicates he was constantly harassed by his platoon sergeant who did not like him.  He felt he had no one he could turn to for a solution to the situation.  After this went on for about 6 months, the platoon sergeant called him into his office and began to speak and act toward the applicant in a manner he thought was hostile.  The applicant "got defensive an [sic] my [instincts] took over where I struck [the platoon sergeant]" and they struggled.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable or bad conduct) pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

10.  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.

11.  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.

12.  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 evidence of record does not show nor has the applicant provided evidence showing his special court-martial was not conducted in accordance with law and regulations or that he was not provided adequate legal representation.

2.  The ABCMR does not grant requests for an upgrade of discharges solely for the purpose of making an applicant eligible for benefits.  The applicant has not offered any valid reason why clemency should be granted to him in the form of a discharge upgrade.  His contention that he acted in self-defense is an issue that should have been conclusively adjudicated at the court-martial or during the appellate process.  Other than his own statement, he has not provided evidence to support his assertion he acted in self-defense.

3.  In view of the above, there is no basis for granting the requested relief.  

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)                                         AR20100009677



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)