IN THE CASE OF:	  

		BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20120004725 


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 bad conduct discharge be upgraded to honorable.

2.  The applicant states:

* it has been 30 years
* he has suffered great psychological/emotional stress
* he needs help
* he was never given a chance to appeal the court-martial decision 

3.  The applicant provides:

* page 2 of his special court-martial order
* Order of the U.S. Court of Military Appeals, dated 22 December 1981
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 24 October 1979 for a period of 3 years.  He completed his training and was awarded military occupational specialty 13B (cannon crewman).   

3.  On 24 July 1980, nonjudicial punishment (NJP) was imposed against the applicant for assault.

4.  On 30 September 1980, contrary to his pleas, he was convicted by a special court-martial of assault and battery (two specifications), assault upon a noncommissioned officer in the execution of his office, and communicating a threat to injure.  He was sentenced to be confined at hard labor for 6 months, to forfeit $299.00 pay for 6 months, and to be discharged from the service with a bad conduct discharge.  On 18 November 1980, the convening authority approved the sentence.

5.  On 31 August 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

6.  On 22 September 1981, NJP was imposed against the applicant for being derelict in the performance of his duties.

7.  The U.S. Court of Military Appeals denied his petition for review on 
9 December 1981.

8.  On 26 January 1982, the convening authority ordered the applicant's bad conduct discharge duly executed.

9.  He was discharged with a bad conduct discharge on 22 February 1982 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial.  He had served a total of 1 year, 9 months, and 28 days of creditable active service with 185 days of lost time.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states that a Soldier will be given a bad conduct discharge pursuant only to an approved 


sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

11.  Army Regulation 635-200, 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.

12.  Army Regulation 635-200, 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.

13.  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.

14.  Courts-martial are conducted under the UCMJ, 10 U.S.C. §§ 801-946, and the Manual for Courts-Martial.  If the trial results in a conviction, the case is reviewed by the convening authority who has discretion to mitigate the findings and sentence.  If the sentence, as approved by the convening authority, includes death, a bad-conduct discharge, a dishonorable discharge, or confinement for one year or more, the case is automatically reviewed by an intermediate court; at that time, the U.S. Army Court of Military Review.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends it has been 30 years.  However, the passage of time is normally not a basis for upgrading a discharge.

2.  He contends he needs help (apparently he means Department of Veterans Affairs (DVA) benefits).  However, a discharge is not changed for the purpose of obtaining DVA benefits.

3.  His contention he was never given a chance to appeal the court-martial decision relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.  However, the record shows his conviction was reviewed by the convening authority and by the U.S. Army Court of Military Review.  He was also given the opportunity to appeal to the U.s. Court of Military Appeals, although that court denied is petition for review.

4.  Trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

5.  His record of service included two NJPs, one special court-martial conviction, and 185 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

6.  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 were therefore appropriate.  As a result, clemency is not warranted in this case.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20120004725





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ABCMR Record of Proceedings (cont)                                         AR20120004725



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