IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100027174 


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 to an honorable discharge.

2.  The applicant states he was seen as a serious threat to the welfare of the Army and the people around him so he was not allowed to work in the motor pool with his fellow Soldiers.  He contends it was difficult for him to peacefully coexist with other Soldiers.  He was put on permanent work detail. 

3.  He also states his punishment was based on isolated acts of indiscipline and he had 181 days of time lost.  He was a good Soldier and his overall service record was good.  He felt he did not have "Proper Counseling, to represent him" and no rehabilitation or transfer programs were offered to him.  He indicates he got into two fights while in the Army, he was harassed, he was unfairly attacked, and he was booted out of the Army.  He claims his two attackers received no judicial punishment at all.

4.  The applicant provides:

* A brief in support of an upgrade
* His DD Form 214 (Report of Transfer or Discharge)
* Page 2 of Special Court-Martial Order Number 2, dated 6 March 1970


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 enlisted in the Regular Army on 12 February 1968 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 45G (turret artillery repairman).

3.  On 9 August 1968, he was convicted by a summary court-martial of assault by striking a Soldier on the head with a dangerous weapon likely to produce grievous bodily harm (a metal pipe).  He was sentenced to be reduced to E-1, hard labor without confinement for 30 days, and a forfeiture of $60.00 pay per month for one month.  On 9 August 1968, the convening authority approved the sentence.

4.  On 3 May 1969, while in Germany, nonjudicial punishment (NJP) was imposed against the applicant for failing to go at the prescribed time to his appointed place of duty.

5.  On 14 November 1969, while in Germany, he was convicted by a special court-martial of assault by cutting a Soldier with a dangerous weapon (a sharp instrument) and thereby intentionally inflicting grievous bodily harm upon him
(severe lacerations about the face and neck).  He was sentenced to be discharged from the service with a bad conduct discharge, to forfeit $80.00 pay per month for 5 months, and to be confined at hard labor for 5 months.  On
6 March 1970, the convening authority approved the sentence.

6.  On 10 December 1970, he was convicted by a summary court-martial of disobeying a lawful order.  He was sentenced to forfeit $75.00 pay per month for one month.  On 14 December 1970, the convening authority approved the sentence.

7.  On 9 December 1970, the U.S. Army Court of Military Review affirmed the findings of guilty and sentence of the November 1969 special court-martial.

8.  On 19 January 1971, the convening authority ordered the bad conduct discharge to be executed.

9.  Accordingly, on 26 January 1971 he was discharged with a bad conduct discharge.  His DD Form 214 issued at the time shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), with a separation program number (SPN) of 292 (other than desertion (court-martial)).  He completed 2 years, 5 months, and 15 days of total active service with 181 days of time lost.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states 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.

11.  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.  

12.  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.  

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.  His contention that he had ineffective counsel relates to legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

2.  His contention that no rehabilitation or transfer programs were offered to him does not justify the misconduct for which he was convicted.

3.  Trial by court-martial was warranted by the gravity of the offense 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.

4.  He contends he was a good Soldier and his overall service record was good.  However, his record of service included one NJP, two summary court-martial convictions (one for aggravated assault), and one special court-martial conviction for aggravated assault.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

5.  Any redress by this Board of the finality of a court-martial conviction is prohibited 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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20100027174



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ABCMR Record of Proceedings (cont)                                         AR20100027174



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