IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100011160 


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 that his bad conduct discharge be upgraded to a general discharge under honorable conditions.

2.  He states his request is justified because it was over 10-15 years ago that he served in the Armed Forces.  He states he had a brain tumor while he served in the Army.

3.  He provides no documentary evidence in support of this 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.  The record shows he enlisted in the Regular Army on 25 June 1991.  He was trained in and awarded military occupational specialty 13B (Cannon Crewman).  The highest rank/pay grade he attained while serving on active duty was private first class/E-3.  However, at the time of separation he held the rank/pay grade of private/E-1.

3.  On 25 May 1993, he was barred from reenlisting.  Item 8 (Record of Nonjudicial Punishment) of the DA Form 4126-R (Bar to Reenlistment Certificate) shows he received an Article 15 on 26 February 1992 for intent to defraud.  Item 10 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) shows the following entries:

* general counseling, failure to prepare for Class A inspection, 8 December 1992
* U.S. Army Criminal Investigation Command (CID) Form 14, report of aggravated assault, 22 February 1993
* general counseling, aggravated assault, 26 February 1993

4.  Headquarters, V Corps, Office of the Staff Judge Advocate Department of the Army Report of Trial, dated 3 June 1993, shows he was tried by a general court-martial at Giessen Army Depot, Giessen, Germany.  He pled guilty to assault with means likely to inflict grievous bodily harm, not guilty to one specification of wrongful use of provoking words, and not guilty to two specifications of wrongful use of provoking and reproachful words.  He was found guilty of assault with means likely to inflict grievous bodily harm specification and not guilty of the remaining charges.

5.  He was sentenced to be discharged from the Army with a bad conduct discharge, to be confined for 16 months, total forfeiture of all pay and allowances, and to be reduced to the grade of private/E-1.  The sentence was adjudged on 3 June 1993.

6.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 30, dated 28 March 1994, shows his aforementioned sentence had been finally affirmed.  The appellate review according to Article 71(c) had been complied with and the bad conduct discharge was directed to be executed.

7.  On 15 April 1994, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time shows he completed 2 years, 9 months, and 21 days of creditable active military service during his most recent period of enlistment.  His service was characterized as bad conduct and the narrative reason for his separation was "court-martial, other."

8.  The medical records were not available for review and the record is void of any information to substantiate he had a brain tumor while on active duty.

9.  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.

10.  Army Regulation 635-200 (Enlisted Separations), 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded to a general discharge under honorable conditions.

2.  The available evidence shows he committed a serious crime which rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  This crime resulted in him being tried by a general court-martial which was warranted by the gravity of the offense charged.  His 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.

3.  There is no evidence in the record, or provided by the applicant, that shows he was diagnosed with a brain tumor or that such medical condition was the origin of his misconduct while on active duty.

4.  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.

5.  The available record was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offense for which he was convicted, it is also clear that his service was not satisfactory.  Thus, he did not meet the criteria for a general discharge under honorable conditions and there is no basis for a grant the requested relief.

6.  In view of the foregoing, his request should be denied.

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)                                         AR20100011160



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ABCMR Record of Proceedings (cont)                                         AR20100011160



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