IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110002204 


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 (BCD).

2.  The applicant states that he was young and dumb and was only a kid with a drug problem when he was court-martialed; he truly regrets his actions.  He goes on to state that he made amends with the Soldier he assaulted and contends that he is a better man who is all grown up and he desires the Board to know that he did not deserve a BCD.  He further states that his discharge should be upgraded because he is a respected member of society now who is clean and sober.

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 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 was born on 22 November 1956 and he enlisted in the Regular Army in Oakland, CA on 22 November 1974 for a period of 3 years, training as a radio operator, and assignment to the 2d Armored Cavalry Regiment in Europe.

3.  He completed his basic training at Fort Ord, CA and his advanced individual training at Fort Gordon, GA.  On 15 May 1975 was transferred to Bindlach, Germany for assignment to a cavalry troop.  He was advanced to the rank/grade of private first class (PFC)/E-3 on 1 July 1975.

4.  On 5 April 1976 nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against him for failing to go at the time prescribed to his place of duty.

5.  On 8 December 1976, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty and for failing to clean his weapon.

6.  On 18 December 1976, NJP was imposed against him for wrongfully possessing some amount of marijuana.

7.  On 3 January 1977, the applicant’s commander initiated action to bar him from reenlistment based on his disciplinary record, his demonstrated lack of respect for military authority, and decreased conduct and efficiency.  He also stated that the applicant’s only desire was to leave the Army and that he was pending trial by court-martial for assault and possession of marijuana.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 18 February 1977.

8.  On 29 March 1977, NJP was imposed against him for breaking restriction.

9.  On 6 April 1977, he was convicted pursuant to his pleas by a general
court-martial of conspiracy to commit assault, aggravated assault, communicating a threat, and possession of marijuana.  He was sentenced to confinement at hard labor for 1 year, forfeiture of all pay and allowances, reduction to the rank/grade of private (PV1)/E-1, and a BCD.

10.  On 11 January 1978, the applicant was placed on excess leave pending completion of the required appellate review.

11.  On 26 May 1978, the U.S. Court of Military Review affirmed the findings and sentence as approved by the convening authority.


12.  On 12 June 1979, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He completed 3 years, 9 months, and 12 days of total active service with 280 days of time lost.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 specified a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before the BCD could be duly executed.

14.  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.

15.  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.  

16.  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’s contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses.  His service simply does not rise to the level of an honorable or a general discharge.

2.  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.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or mitigating reasons to warrant an upgrade of his discharge based on clemency.

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110002204



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ABCMR Record of Proceedings (cont)                                         AR20110002204



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