IN THE CASE OF:
BOARD DATE: 2 December 2010
DOCKET NUMBER: AR20100014978
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 (BCD) be upgraded to a general discharge.
2. The applicant states that his discharge should be upgraded because he did not retaliate when he was assaulted but was discharged because of his verbal assault.
3. The applicant provides no additional documents with 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 applicants 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 applicants 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 in Richmond, Virginia on 28 November 1972 for a period of 2 years. He completed his basic training at Fort Jackson, South Carolina and his advanced individual training as a cannoneer at Fort Sill, Oklahoma before being transferred to Alaska on 5 May 1973. He was advanced to the pay grade of E-3 on 18 July 1973.
3. On 30 January 1974, nonjudicial punishment (NJP) was imposed against him for wearing a civilian cap with his uniform after being told not to do so.
4. On 13 February 1974 NJP was imposed against him for being absent from his unit from 11 February to 12 February 1974.
5. On 27 April 1974, he was convicted by a special court-martial of:
* Two specifications of failure to go to his place of duty
* Being disrespectful in language towards a superior noncommissioned officer
* Disobeying a lawful order from a superior noncommissioned officer
* Assaulting a superior noncommissioned officer
6. He was sentenced to a forfeiture of pay for 4 months, confinement at hard labor for 4 months, and to be discharged with a BCD. He was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas to serve his sentence.
7. On 31 December 1974, the United States Army Court of Military Review affirmed the sentence approved by the convening authority.
8. On 19 May 1975, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He had served 2 years, 2 months, and 11 days of total active service and had approximately 101 days of lost time due to imprisonment.
9. There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.
10. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7b states 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.
DISCUSSION AND CONCLUSIONS:
1. Trial by 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 characterizes the misconduct for which the applicant was convicted.
2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.
3. The applicants contentions have been noted; however, he has failed to show through evidence submitted with his application or the evidence of record, sufficient evidence to warrant an upgrade of his 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) AR20100014978
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ABCMR Record of Proceedings (cont) AR20100014978
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