IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110008384 


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 under other than honorable conditions discharge to an honorable discharge.

2.  He states, in effect, he was discharged after being found guilty of assaulting an officer and he did not understand the ramifications of not fighting the results of the court-martial.  The type of discharge he received has greatly hurt his job potential.  He is asking the Board to upgrade his discharge because he has since matured, he is married, and he has three children and four grandchildren.

3.  He provides:

* a self-authored statement
* a letter to his Member of Congress, dated 10 June 2011
* a Standard Form (SF) 513 (Clinical Record - Consultation Sheet)

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 16 August 1974.  He completed training and he was awarded military occupational specialty 36C (telephone installer and lineman.  The highest rank/grade he held during his period of service was private (PV2)/E-2.

3.  On 6 May 1975, his battalion commander administered nonjudicial punishment (NJP) against him under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* failing to go at the time prescribed to his appointed place of duty on 9 April 1975
* failing to obey an order issued by a commissioned officer on 9 April 1975
* wrongfully and unlawfully offer to a superior Soldier an undetermined amount of money as compensation for services rendered, to wit:  urinalysis test

He appealed the imposed punishment; however, his appeal was denied.

4.  On 3 October 1975, his company commander administered NJP against him under the provisions of Article 15, UCMJ, for:

* being disorderly on 26 September 1975
* failing to go at the time prescribed to his appointed place of duty on 29 September 1975
* absenting himself from his place of duty without authority on 1 October 1975

He appealed the imposed punishment; however, his appeal was denied.

5.  Special Court-Martial Order Number 9, issued by Headquarters, 94th Air Defense Artillery Group, dated 10 March 1976, shows he was found guilty of striking a superior noncommissioned officer (NCO) and being disrespectful in language to the same superior NCO on 19 December 1975.  He was sentenced to be confined at hard labor for 102 days, to forfeit $100.00 per month for
2 months, and to be reduced to the lowest enlisted grade.  The sentence was approved and ordered to be duly executed.


6.  Special Court-Martial Order Number 154, issued by Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, CO, dated 21 November 1977, shows he was found guilty of:

* being disrespectful in language toward a warrant officer on 3 April 1977
* disobeying a lawful order from a warrant officer on 3 April 1977
* striking a commissioned officer 9 May 1977
* being disrespectful in language toward an NCO on 9 May 1977

He was sentenced to be discharged from the service with a bad conduct discharge.  The finding of guilt for being disrespectful in language toward a warrant officer was disapproved; however, the remaining findings of guilty and the sentence were approved.

7.  On 17 May 1978, the U.S. Army Court of Military Review found the approved findings of guilty and sentence correct in law and fact, determined the findings of guilty and sentence should be approved, and affirmed the findings and sentence.

8.  On 10 September 1978, the U.S. Court of Military Appeals affirmed the decision of the U.S. Army Court of Military Review.

9.  Special Court-Martial Order Number 58, issued by Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, dated 25 September 1979, ordered the approved sentence to a bad conduct discharge be duly executed.

10.  On 15 October 1979, the applicant was accordingly discharged.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, by reason of "as a result of court-martial."  Item 24 (Character of Service) shows his service was characterized as "under other than honorable conditions."

11.  On 25 March 1982, the Army Discharge Review Board notified him his request for a change in the type and nature of his discharge had been denied.

12.  He provides an SF 513, dated 24 May 1977, that shows his defense counsel requested an electroencephalogram (EEG) for evidence in his defense.

	a.  In the request counsel stated the applicant had a history of headaches and spots in front of his eyes since childhood and he had suffered head trauma approximately 6 to 12 months prior to the date of the request.  Counsel also stated the applicant claimed to have episodic amnesia.


	b.  The examining physician found the applicant's EEG to be normal.

13.  In a self-authored statement to his Member of Congress, dated 10 June 2011, he recounts the incidents that resulted in his convictions.

	a.  He states, in effect, his first conviction resulted from him striking an NCO with a metal pipe after he had been assaulted by a group of fellow Soldiers.  He states no extenuating circumstances were considered and all of his witnesses were transferred to another installation before the court date.

	b.  When he returned to duty after serving his sentence, he was assigned to Fort Carson.  With several months left in his enlistment, he was attacked and beaten by a Soldier much larger than him.  He was walking away from the incident when someone called out to him.  He turned around pointing his finger and may have touched an officer's face.  The officer later accused him of striking him.  No one would testify in his defense and all of the officer's witnesses were promoted prior to the court-martial.

14.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 (Dishonorable or Bad Conduct Discharge) provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

15.  Army Regulation 635-200, currently in effect, provides in:

	a.  Paragraph 3-7a, 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.

	b.  Paragraph 3-7b, 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 evidence of record does not support the applicant's request for upgrade of his bad conduct discharge.

2.  The record does not show, nor has the applicant provided evidence showing, that the special court-martial proceedings against him were not conducted in accordance with law and regulations.  Although he states he did not understand the ramifications of not fighting his conviction, the record shows the U.S. Army Court of Military Review and the U.S. Court of Military Appeals affirmed his conviction.

3.  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.

4.  In view of the foregoing, there is no basis for granting his requested 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)                                         AR20110008384



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ABCMR Record of Proceedings (cont)                                         AR20110008384



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