IN THE CASE OF:	  

		BOARD DATE:  13 November 2012

		DOCKET NUMBER:  AR20120007872 


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, an upgrade of his bad conduct discharge.

2.  The applicant states:

* the jury was not given the correct evidence
* the U.S. Government sent his witness away
* the charge was changed after he was found guilty
* the new charge meant there was no bodily harm or a separated shoulder, nor were his actions intentional and he did not inflict any grievous bodily harm with the entrenching tool
* false and fabricated information and evidence was given to the U.S. Army Court of Military Review
* the alleged case was fixed against him
* the records show he was subjected to injustice, violation of his due process, and ineffective assistance of counsel and none of these issues in his case were raised in the court of review

3.  The applicant provides:

* statement of facts
* court-martial order correcting certificate, dated 26 October 1982
* post-trial argument



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 15 July 1981 for a period of 3 years.  He completed training and was awarded military occupational specialty 36K (tactical wire operations specialist).

3.  On 24 February 1982, he was convicted by a general court-martial of "on or about 14 November 1981, unlawfully commit an assault upon Private E-1 C____ K. H____ by striking him on the shoulder with an entrenching tool, and did thereby intentionally inflict grievous bodily harm upon him, to wit:  a separated shoulder."  He was sentenced to forfeit all pay and allowances, to be confined at hard labor for 1 year, and to be discharged from the service with a bad conduct discharge.  On 15 June 1982, the convening authority approved the sentence.

4.  On 26 October 1982, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  The U.S. Army Court of Military Review issued a court-martial order correcting certificate on 26 October 1982.  The certificate stated that to cause the initial promulgating order truly to conform to the proceedings as shown in the record of trial, the applicant's general court-martial order is corrected by deleting the words:  "an entrenching tool, and did thereby intentionally inflict grievous bodily harm upon him, to wit:  a separated left shoulder" from specification 1 of the charge and substituting therefor "a means and force likely to produce grievous bodily harm, to wit:  an entrenching tool."

5.  On 8 April 1983, the convening authority ordered the applicant's bad conduct discharge duly executed.

6.  He was discharged with a bad conduct character of service on 19 April 1983 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  He completed a total of 7 months and 8 days of creditable active service with 423 days of lost time.

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

	a.  Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must be 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.

	c.  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.

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 the charge was changed after he was found guilty and the new charge meant there was no bodily harm or a separated shoulder, nor were his actions intentional and he did not inflict any grievous bodily harm with the entrenching tool.  However, on 26 October 1982, the U.S. Army Court of Military Review corrected the specification of his charge to conform to the proceedings as shown in the record of trial.  The specification was in fact corrected to state, "on or about 14 November 1981, unlawfully commit an assault upon Private E-1 C____ K. H____ by striking him on the shoulder with a means and force likely to produce grievous bodily harm, to wit:  an entrenching tool."  This correction does not mitigate or change the aggravated assault offense in any way.

2.  His remaining contentions relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

3.  A trial by court-martial was warranted by the gravity of the offense 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.

4.  His record of service during his enlistment included one general court-martial conviction for aggravated assault and 423 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.

5.  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.

6.  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 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)                                         AR20120007872



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ABCMR Record of Proceedings (cont)                                         AR20120007872



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