IN THE CASE OF:	  

		BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20110020920 


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 discharge.

2.  The applicant states no contentions. 

3.  He provides no documentation in support of his request.

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 8 August 1978.  After completing initial entry training, he was awarded military occupational specialty 12B (Combat Engineer).

3.  His record shows he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on:

* 14 April 1980 for being disorderly in quarters
* 9 October 1980 for unlawfully striking another Soldier on the head with a beer mug and for participating in a breach of the peace by wrongfully engaging in a fist fight with the same Soldier
* 5 November 1980 for stealing jewelry from the post exchange
* 13 March 1981 for being derelict in the performance of his duties and being absent from his place of duty without authority
* 9 April 1981 for violating a lawful general regulation by having in his possession a spring-blade locking type knife and a cartridge-type gas pistol
* 13 February 1982 for wrongfully having in his possession 8 grams, more or less, of marijuana

4.  On 13 April 1982, Headquarters, 8th Infantry Division (Mechanized), issued Special Court-Martial Order Number 35, which shows he was found guilty of unlawfully striking another Soldier with his fists and a night stick and assaulting a noncommissioned officer.  He was sentenced to confinement at hard labor for 
2 months, a forfeiture of $150 pay for 2 months, reduction to private/E-1, and a bad conduct discharge (BCD).  The sentence was approved and the record of trial was forwarded for review by the U.S. Army Court of Military Review.  

5.  On 23 June 1982, the U.S. Army Court of Military Review affirmed the court-martial findings and the sentence.  

6.  On 14 September 1982, the U.S. Court of Military Appeals denied a petition for grant of review of the decision of the U.S. Army Court of Military Review.

7.  On 8 October 1982, Headquarters, XVIII Airborne Corps, Fort Bragg, NC, issued Special Court-Martial Order Number 127, which directed that his sentence be duly executed.  

8.  On 19 October 1982, he was discharged as directed.  

9.  On 8 March 1984, he was informed that the Army Discharge Review Board had denied his request for a change in the character of and/or reason for his discharge.



10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 11 (Dishonorable and BCD) of the version in effect at the time provided that a Soldier would be given a BCD pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must have been completed and the affirmed sentence ordered duly executed.

	b.  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.

	b.  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.

11.  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 an upgrade of his BCD.

2.  The record shows the special court-martial proceedings against him were conducted in accordance with law and regulations.  His conviction and sentence were properly reviewed and affirmed, and the sentence was ordered to be duly executed.  

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 lengthy record of indiscipline 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 the relief he has requested.

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)                                         AR20110020920



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110020920



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1