IN THE CASE OF:	  

		BOARD DATE:	  12 January 2012

		DOCKET NUMBER:  AR20110013623 


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 an upgrade of his bad conduct discharge (BCD) to a general discharge.

2.  The applicant states he believes the record is in error because the shooting was initially declared an accidental shooting and the Criminal Investigation Command initially found him not responsible.  He states he has never had any incident other than the one in question and he desires an upgrade of his discharge so he can obtain benefits and/or a government job.

3.  The applicant provides copies of commendatory documents from his records as well as copies of his evaluation reports.

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 20 February 1980.  He completed basic training and advanced individual training as a unit supply specialist at Fort Jackson, South Carolina.  He remained on active duty through a series of continuous reenlistments.  He was promoted to pay grade E-6 on 8 September 1987.  He was assigned to Fort Benning, Georgia, on 26 September 1991.

3.  On 11 March 1994, he was convicted by a general court-martial of assault consummated by battery on 26 October 1993, assault in which grievous bodily harm was inflicted on 26 October 1993, two specifications of making false official statements, and disobeying a lawful command from a superior commissioned officer on 3 December 1993.  He was sentenced to confinement for 6 years, reduction to pay grade E-1, and a BCD.

4.  On 24 July 1998, General Court-Martial Order Number 69 was published by the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, indicating the findings and sentence as approved by the convening authority had been affirmed and directed that the BCD be executed.

5.  On 14 August 1998, he was discharged pursuant to a duly-reviewed and affirmed court-martial conviction.  He completed 14 years and 21 days of active service and had 4 years, 5 months, and 3 days of lost time due to confinement.

6.  A review of the applicant's official records shows that on 11 September 1987 while serving in the pay grade of E-5, nonjudicial punishment was imposed against the applicant for falsifying correspondence course transcripts.  That appears to be the only derogatory information contained in his official files other than his court-martial conviction.

7.  Army Regulation 635-200 (Personnel Separations), 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.

8.  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 trial by court-martial was warranted by the gravity of the offenses charged.  The applicant's conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  Therefore, the type of discharge directed and the reasons appear to be appropriate considering the available facts of the case.

2.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his grade at the time.

3.  His punishment was not disproportionate to the offenses for which he was convicted and he failed to show sufficient evidence or 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 of 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 for it was 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 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)                                         AR20110013623



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ABCMR Record of Proceedings (cont)                                         AR20110013623



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