IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100021458


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.

2.  The applicant states, in effect, that he was charged with assaulting an officer, but contends he may have been charged with disobeying a direct order.  He states the charge, for which he was court-martialed, did not involve actual assault, but he admits there was a scuffle.  He attributes this incident to the use of alcohol, and states things just got out of hand.  He states he has matured since then and he regrets his poor choice during that period.

3.  The applicant provides no additional evidence.

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's record shows he enlisted in the Regular Army on                  17 November 1971.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  Records show the applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on eight separate occasions for the offenses indicated:

* on 13 December 1971, for absenting himself, without authority, from his appointed place of duty, and for wrongfully using provoking words, on                12 December 1972 
* on 29 March 1972, for assaulting another Soldier by striking him with his fist, on 22 March 1972
* on 28 June 1972, for absenting himself, without authority, from his place of duty, on 25 June 1972
* on 23 August 1972, for being absent without leave (AWOL) during the period 16 July 1972 to 10 August 1972
* on 7 September 1972, for being AWOL during the period 31 August 1972 to 3 September 1972
* on 23 February 1973, for absenting himself, without authority, from his appointed place of duty, on 22 February 1973
* on 15 March 1973, for driving with no drivers license, and for a uniform violation, on 15 March 1973
* on 1 August 1973, for absenting himself, without authority, from his appointed place of duty, on 31 July 1973 

4.  At a Special Court-Martial at Fort Carson, CO, he pled not guilty to all charges and specifications.  He was charged with:

* 2 specifications of Charge 1, assaulting a commissioned officer
* 1 specification of Charge 2, wrongfully communicating a threat
* 1 specification of Charge 3, willfully disobeying a lawful order

5.  On 8 March 1974, the Court found him guilty of one specification of Charge 1 and Charge 2, and not guilty of Charge 3.  The Court sentenced him to a bad conduct discharge, confinement at hard labor for 5 months, forfeiture of $200.00 per month for 5 months, and reduction to the grade of E-1.

6.  On 4 June 1974, the convening authority approved the sentence and, except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.
7.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

8.  Special Court-Martial Order Number 394, Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, dated 30 July 1975, shows that, after completion of all required post-trial and appellate reviews, the bad conduct discharge was ordered executed.

9.  On 5 August 1975, he was discharged in accordance with the provisions of Army Regulation 635-200 (Enlisted Separations), Chapter 11.  His DD Form 214 shows he was discharged as a result of court-martial, with an under other than honorable character of service.  This form further shows he completed a total of  3 years, 2 months, and 21 days of creditable military service.

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.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will 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 affirmed sentence ordered duly executed.  

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 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 was given a bad conduct discharge pursuant to an approved sentence of a special court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  

2.  All requirements of law and regulation were met and his rights were fully protected.  His defense of alcohol intoxication is an issue that would have been fully adjudicated and considered during the court-martial proceedings.  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.  In view of the foregoing, there is insufficient basis to grant 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20100021458



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