IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110022990 


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 to general under honorable conditions.

2.  The applicant states he committed a careless act that resulted in his discharge.  He was visiting the home of a fellow Soldier when he carelessly discharged a firearm in her house.  She was injured and required three stitches in her foot.  He was arrested and convicted of assault.  He apologized to her and her family and has learned from his mistake.  He accepted full responsibility for his actions and is simply trying to put that chapter of his life behind him.

3.  The applicant provides four character reference letters.

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's records show he enlisted in the Regular Army on 21 July 1992 and he held military occupational specialty 92G (Food Service Specialist).  He was assigned to Fort Bragg, NC.

3.  On 23 November 1998, he pled guilty and was convicted by a general court-martial of:

* one specification of unlawfully firing a weapon into a wall or door causing bullet fragments to ricochet and strike another Soldier's toe
* one specification of wrongfully and unlawfully discharging a firearm under circumstances such as to endanger human life
* one specification of unlawfully carrying a concealed weapon

4.  The court sentenced him to a reduction to private/E-1, confinement for 1 year, forfeiture of all pay and allowances, and a bad conduct discharge.

5.  On 25 February 1999, the convening authority approved the sentence and, except for the bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

6.  On 22 April 1999, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General Court-Martial Order Number 140, dated 1 September 1999, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

8.  He was discharged from the Army on 13 April 2000 with a bad conduct character of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 7 years, 1 month, and 6 days of creditable military service and he had lost time from 23 November 1998 to 7 July 1999.

9.  He provides four character reference letters from various individuals who describe him as a friendly, compassionate, devoted, and helpful person.  The authors agree that he possesses natural leadership ability.

10.  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.

11.  Army Regulation 635-200 (Personnel Separations) prescribes the types of characterization of service or description of separation.  Paragraph 3-7b states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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)                                         AR20110022990



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ABCMR Record of Proceedings (cont)                                         AR20110022990



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