IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120000425 


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 upgrade of his bad conduct discharge (BCD) to a general discharge.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in 20 months of service during which there were no other adverse actions.  He also states the judge did not give the jury instructions on any other type of discharge besides a BCD.

3.  The applicant provides no additional documentary evidence 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 23 February 1996 for a period of 3 years.  He was awarded military occupational specialty 13B (Cannon Crewmember).

3.  On 17 October 1997, the applicant was convicted at a special court-martial of:

* breaching the peace
* assault by drawing, pointing, and lunging at another Soldier with a knife
* assault by cutting another Soldier on the face with a knife
* communicating a threat

4.  He was sentenced to reduction to pay grade of E-1, to forfeit $600.00 pay per month for 3 months, to be confined for 6 months, and to be discharged with a BCD.  On 5 February 1998, the convening authority approved the sentence, except the part of the sentence extending to a BCD, and ordered it executed.

5.  Orders 218-20, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, dated 6 August 2002, reassigned the applicant from the Personnel Control Facility to the U.S. Army Transition Center, Fort Sill, for separation processing and discharge from the Regular Army on 19 August 2002.

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 19 August 2002.

	a.  He completed 6 years and 4 days of creditable active service.

	b.  Item 29 (Dates of Time Lost During This Period) shows the entry "Under Title 10, U.S. Code, section 972:  17 October 1997 through 7 April 1998."

7.  The Westlaw online research website at:  https://web2.westlaw.com revealed the following:

	a.  In U.S. Army Court of Criminal Appeals, United States, Appellee, v. (Applicant), U.S. Army, Appellant - Army 9701687, 16 September 1999, the court considered the applicant's appeal and held that:  "(1)  military judge's unexplained refusal to give standard sentencing instruction on ineradicable stigma associated with punitive discharge, even after accused made timely request for such instruction, was arbitrary and clearly unreasonable; but
(2)  judge's error was not prejudicial in light of instructions as whole, of relative seniority and experience of panel, and of seriousness of accused's conduct."  Accordingly, the findings of guilty and the sentence were affirmed.

	b.  In U.S. Court of Appeals for the Armed Forces, United States, Appellee, v. (Applicant), U.S. Army, Appellant - Criminal Appeal Number 9701687, argued
3 October 2000, decided 26 January 2001, the court reviewed the U.S. Army Court of Criminal Appeals decision and "held that although military judge erred in refusing to give a defense-requested standard instruction on the 'eradicable stigma' of a punitive discharge without explaining the basis of his decision on the record, the error was harmless."  Accordingly, the findings and decision of the lower court were affirmed.

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 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 applicant contends that his BCD should be upgraded because the judge did not give the jury instructions on any other type of discharge besides that of a BCD and his discharge was inequitable.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the applicant's appeal.

3.  The applicant's contentions were considered by the U.S. Army Court of Criminal Appeals and the United States Court of Appeals for the Armed Forces.  In both instances, the sentence to a BCD was affirmed.  Both courts held the failure to give the jury the requested instructions was a harmless error.

4.  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 undistinguished record of service 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20120000425



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000425



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1