BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110023817 


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, in effect, his bad conduct discharge be upgraded to an honorable discharge or a general discharge.

2.  The applicant states his error in striking an officer in 1980 stemmed from his lack of maturity and discipline.  He has regretted the incident since that time and has rehabilitated himself.  He believes an upgrade should be considered because he has matured since that unfortunate incident.

3.  The applicant provides three personal references.

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.  He enlisted, at the age of 23, in the Regular Army on 28 March 1978 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  On 30 August 1978, he was assigned to the Combat Support Company, 2nd Battalion, 32nd Armor in Germany.

4.  On 1 May 1979, he was tried before a special court-martial.  He pled not guilty but was found guilty of:

* three specifications of assault
* wrongfully communicating a threat to kill a private first class by holding a knife to his neck and telling him he was going to kill him
* wrongfully communicating to a private first class a threat to injure him by cutting him with a utility knife

5.  His sentence consisted of:

* reduction to the grade of private/pay grade E-1
* confinement at hard labor for 3 months 
* discharge from the Army with a bad conduct discharge

6.  On 5 July 1979, the convening authority approved the sentence.

7.  On 7 November 1979, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On 15 February 1980, his sentence to a bad conduct discharge was ordered executed.

8.  On 4 April 1980, he was discharged as a result of a court-martial with a bad conduct discharge.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had completed 1 year, 9 months, and 22 days of active service.  He had 76 days of lost time.

9.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 14 August 1991, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable.  

10.  The applicant submitted three references from individuals.  

	a.  His boss, who has known him in a professional setting for the past 
6 1/2 years, found him to have always dealt with the drivers, aides, and office and school staff with a positive and amiable demeanor.  He is punctual and is considered to be an all around good person.

	b.  A member of his church states he has been an active member of the church for the past 16 years.  He is a kind and friendly person who has given outstanding leadership to the church board over the past 15 years.  He is a person of excellent character and integrity who has been a steadying positive influence in the ministry.  He has held a leadership role as a deacon for 15 years.

	c.  His daughter states he has been honorable in his community and his work. He is faithful in his service to his church and dedicated as a husband, father, and son.  He legally adopted her after marrying her mother and raised her as his own, showing her love and dedication that is beyond measure.

11.  Army Regulation 635-200 (Personnel Separations, Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

12.  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.  He was 23 years of age at the time of his enlistment.  Many Soldiers enlisted at a younger age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

2.  	The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.
	
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.

4.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is usually not sufficiently mitigating to upgrade a properly-issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

5.  The applicant's entire record of service was considered.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis to support the applicant’s request to upgrade his discharge at this time.  

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.


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)                                         AR20110023817



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ABCMR Record of Proceedings (cont)                                         AR20110023817



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