IN THE CASE OF:	 

		BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100023160 


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 be upgraded. 

2.  The applicant states he was involved in a physical altercation with another Soldier at the time.  He spent 6 months in confinement and served his punishment.  He was wrong. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 records show he enlisted in the Regular Army on 10 June 1968 and initially held military occupational specialty 64A (Light Vehicle Driver).  He served in Germany from 25 January 1969 to 13 June 1971 and attained the rank/grade of private first class/E-3.

3.  His records show he was awarded the National Defense Service Medal, Parachutist Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  His records reflect he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* On 12 December 1969, for operating a vehicle recklessly
* On 6 February 1970, for disobeying a lawful order
* On 6 July 1970, for twice failing to go to his appointed place of duty

5.  On 29 June 1970, his immediate commander initiated a Bar to Reenlistment Certificate citing his repeated acts of misconduct.  The applicant submitted a rebuttal in which he stated he felt imposing a bar against him was wrong.   The bar was ultimately approved by the approval authority.

6.  On 24 June 1971, he was convicted by a special court-martial of three specifications of striking two Soldiers in the face and/or jaw with his fist.  The court sentenced him to a forfeiture of $60.00 pay per month for 5 months, confinement at hard labor for 3 months, and a bad conduct discharge. 

7.  On 24 August 1971, 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.

8.  On 14 August 1972, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

9.  Headquarters, U.S. Army Training Center, Fort Dix, NJ, Special Court-Martial Order Number 251, dated 12 October 1972, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

10.  He was discharged from the Army on 26 October 1972.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations) as a result of court-martial, with an under other than honorable conditions character of service.  It further shows he completed 4 years, 1 month, and 18 days of creditable active service and he had 92 days of lost time.

11.  On 12 January 1978, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:

   a.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

   b.  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.

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 contends his bad conduct discharge should be upgraded.

2.  The evidence of record shows his trial by special 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 characterized the misconduct for which the applicant was convicted.  By law the Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.
3.  After a careful review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge.  His discharge accurately reflects his military service.  

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)                                         AR20100023160



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ABCMR Record of Proceedings (cont)                                         AR20100023160



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