IN THE CASE OF:	  

		BOARD DATE:  13 November 2012

		DOCKET NUMBER:  AR20120008693 


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 dishonorable discharge (DD).

2.  The applicant states he should not have received a DD.  He claims it has been 20 years since he had a fight with another Soldier which should not have resulted in a DD, bad conduct discharge, or under other than honorable conditions discharge.  He claims his discharge should have been based on his first 3 years of service which were good.  He further states he has been a model citizen since his discharge. 

3.  The applicant provides no 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 record shows the applicant enlisted in the Regular Army on 7 May 1981, and was trained in and awarded military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist).  

3.  The record shows the applicant served overseas in Germany for 22 months from 15 June 1983 to 29 April 1984.  It also shows he was advanced to specialist four (SP4)/E-4 on 1 November 1983, and this is the highest rank he attained while serving on active duty.  It further shows he was reduced to private first class (PFC)/E-3 for cause on 8 April 1985, and to private/E-1 for cause on 
30 October 1985.  His record documents no acts of valor or significant achievement.  

4.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions between 9 February and 
8 April 1985.  

5.  On 19 September 1985, a general court-martial (GCM) found the applicant guilty of two specifications of violating Article 128 of the UCMJ by committing assault with a means likely to produce death or grievous bodily harm by swinging a lead pipe at another Soldier; and assault with intent to commit murder by stabbing another Soldier with a pair of scissors.  The resulting sentence was a DD; confinement for three years and six months; forfeiture of all pay and allowances; and a reduction to private/E-1.

6.  GCM Order Number 43, Headquarters, V Corps, dated 30 October 1985, shows the convening authority approved only so much of the sentence adjudged on19 September 1985 that provided for a DD, confinement for 40 months, forfeiture of all pay and allowances, and reduction to the grade of private/E-1.

7.  On 16 January 1986, the United States Army Court of Military Review on consideration of the entire record held the findings of guilty and sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the sentence were affirmed.  

8.  On 8 April 1986, Headquarters, U.S. Disciplinary Barracks, U.S. Combined Arms Center, Fort Leavenworth, Kansas, GCM Order Number 103 directed that Article 71c having been complied with, the applicant’s DD be duly executed.



9.  On 23 May 1986, applicant was discharged by reason of court-martial with a DD under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations).  The DD Form 214 he was issued shows he completed a total of 3 years, 11 months, and 23 days of creditable active military service and accrued 248 days of time lost due to confinement.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 prescribes the policies and procedures for separating members with a DD or Bad Conduct Discharge (BCD).  It stipulated that a Soldier would be given a DD pursuant only to an approved sentence of a GCM and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

11.  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’s request that his DD discharge be upgraded because it was too harsh based on his first three years of good service and because he has been a model citizen since his discharge has been carefully considered.  

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.  The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.

3.  Further, the record confirms an extensive disciplinary history including his acceptance of NJP on two separate occasions prior to the court-martial that resulted in his DD.  Based on this disciplinary history and the gravity of the offenses resulting in his court-martial conviction and DD, absent any evidence supporting his assertion of innocence, his overall record of service is not sufficiently meritorious to support clemency and/or 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 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)                                         AR20120008693



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ABCMR Record of Proceedings (cont)                                         AR20120008693



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