IN THE CASE OF:	  

		BOARD DATE:  28 February 2012

		DOCKET NUMBER:  AR20110013772 


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 (BCD) be upgraded to a General Discharge (GD) or Honorable Discharge (HD).

2.  The applicant states he:

* he had been an infantry Soldier
* he transferred to a non-combat maintenance unit in order to learn a skill
* the lax attitude got him in trouble with a lieutenant
* the lieutenant alleged he called her a name and charges were filed
* he received minimal punishment and it was alleged he boasted of "defeating an officer"
* he was transferred, but the lieutenant followed him
* her sergeants ganged up on him and he was provoked into a fight
* he was court-martialed and received a BCD

3.  The applicant provides:

* a personal statement
* two supporting statements



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 U.S. Army Reserve Delayed Entry Program (DEP) for 6 years on 26 July 1979.  On 28 August 1979, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 29 August 1979.  

3.  The applicant's records show he was initially trained in military occupational specialty (MOS) 11B (Infantryman) and served an infantry tour of duty in Korea.

4.  The applicant was transferred from Korea to Fort Campbell, KY.  He initially served in MOS 11B, but in July 1981, he was reassigned to the 801st Maintenance Battalion for duty in MOS 44B (Metal Worker).

5.  The applicant's records contain two court-martial convictions.

	a.  On or about 25 August 1981, he disobeyed a lawful order (twice) and he was disrespectful to a noncommissioned officer (NCO) (twice).  On or about 4 September 1981, he violated a lawful general regulation.  On 19 October 1981, he was adjudged guilty at a summary court-martial and sentenced to a forfeiture of $200 pay for 1 month and 14 days of restriction.  The sentence was approved on 20 October 1981.

	b.  Before a special court-martial he was charged with:

* Charge I:  Violation of the Uniform Code of Military Justice (UCMJ),
Article 91

* Specification:  On or about 12 My 1982, having received a lawful order from an NCO, disobeyed the same


* Charge II:  Violation of the UCMJ, Article 128

* Specification 1:  On or about 0507 hours, 12 May 1982, assault an NCO
* Specification 2:  On or about 0517 hours, 12 May 1982, assault an NCO
* Specification 3:  On or about 0532 hours, 12 May 1982, assault an NCO

* Charge III:  Violation of the UCMJ, Article 108

* Specification:  On or about 12 May 1982, damage Government property

6.  The applicant pled guilty to all charges and specifications and was found guilty of all charges and specifications.  He was sentenced to:

* a BCD
* confinement for 4 months
* a forfeiture of $300 pay for 4 months
* reduction from E-3 to E-1

7.  On 25 January 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

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 empowered to change the severity of the sentence imposed in the court-martial process 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.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a Soldier will be given a BCD pursuant only to an approved sentence by a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.



10.  Army Regulation 635-200 provides guidance on characterization of service.

	a.  Paragraph 3-7a states that an HD 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 states that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant alleges, in effect, his chain of command held animus towards him which led to his court-martial and BCD.

2.  There is no evidence to support the applicant's allegations.  His contention could/should have been raised and addressed in the appellate process.  The evidence shows he was twice convicted by courts-martial.  His first conviction was by a summary court-martial for disrespect and disobedience.  His second conviction was by a special court-martial for disobedience, assault on an NCO, and damaging Government property.  At conviction, he was given a BCD among other things.

3.  Assaulting an NCO is a serious offense; the applicant was convicted and received an appropriate sentence.  He has not demonstrated that clemency is 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)                                         AR20110013772



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ABCMR Record of Proceedings (cont)                                         AR20110013772



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