IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110018055 


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 dishonorable discharge (DD) be upgraded.

2.  The applicant states:

* he made a mistake in the military, but prior to it he was a good Soldier
* he is a master plumber, but he is injured and out of work
* he has medical problems and needs VA (Veterans Administration) benefits

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two letters of reference and support

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 US Army Reserve Delayed Entry Program (DEP) for 6 years on 6 October 1976.  On 21 November 1976, he was discharged from the DEP and enlisted in the Regular Army for 4 years on 22 November 1976.

3.  The applicant's records contain a court-martial conviction.  General Court-Martial Order Number 5, Headquarters, V Corps, Germany, dated 5 March 1979, states:

* Charge:  Violation of the Uniform Code of Military Justice (UCMJ), Article 91
* Specification:  In that [applicant], having received a lawful order from Sergeant RG, his superior noncommissioned officer to move out to the orderly room, did, on or about 13 November [1978] willfully disobey the same

* Charge II:  Violation of the Uniform Code of Military Justice (UCMJ), Article 117
* Specification:  In that [applicant] did, on or about 13 November [1978], wrongfully use provoking words toward Sergeant RG

* Charge III:  Violation of the Uniform Code of Military Justice (UCMJ), Article 128
* Specification:  In that [applicant] did, on or about 13 November [1978], commit an assault upon Sergeant RG, by striking him on the head with an unknown object and did intentionally inflict grievous bodily harm upon him, to wit: a basilar skull fracture with residual facial paralysis and a cerebral concussion

* Charge IV:  Violation of the Uniform Code of Military Justice (UCMJ), Article 134
* Specification:  In that [applicant] did, on or about 13 November [1978], wrongfully communicate to Sergeant RG a threat to injure Sergeant RG


4.  Contrary to his pleas of not guilty to all charges and specifications, the applicant was found guilty of all charges and specifications.  He was sentenced to:

* a DD
* confinement at hard labor for 2 years
* a forfeiture of $200 pay for 24 months
* reduction from E-4 to E-1

5.  General Court-Martial Order Number 145, Headquarters, United States Disciplinary Barracks, Fort Leavenworth, KS, dated 17 March 1980, stated the sentence was affirmed pursuant to Article 66, Uniform Code of Military Justice (UCMJ), and ordered the DD executed.

6.  On 3 April 1980, the applicant was dishonorably discharged.

7.  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.

8.  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 DD or 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 committed an aggravated assault on a noncommissioned officer which left that noncommissioned officer seriously injured.  

2.  The applicant was properly convicted by a General Court-Martial and received an appropriate sentence given his offenses.  He has not demonstrated that clemency is warranted in this case.  The U.S. Army does not upgrade discharges for the purpose of qualifying for VA benefits.

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)                                         AR20110018055





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ABCMR Record of Proceedings (cont)                                         AR20110018055



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