IN THE CASE OF:	  

		BOARD DATE:	  3 January 2013

		DOCKET NUMBER:  AR20120008953 


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 bad conduct discharge (BCD).

2.  The applicant states the general officer specifically stated that "except for the part of the sentence extending to the bad-conduct discharge will be executed."  Therefore, this statement shows his discharge was never approved.  Also, he was not discharged until over 2 years later.

3.  The applicant provides General Court-Martial Order Number 12, issued by Headquarters, V Corps, Germany, dated 23 March 1992.

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's records show he enlisted in the Regular Army on 24 August 1988.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 31F (Electronic Switching Systems Operator).

3.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record) shows he served in Germany from 11 July 1991 to 5 April 1992.

4.  On 10 August 1991, he was placed in pre-trial confinement and he was released on 4 December 1991.

5.  On 4 December 1991, he pled guilty to the following offenses:

* assault consummated by battery on 11 July and 28 July 1991
* assault with a dangerous weapon on 10 August 1991
* false swearing on 10 August 1991
* unlawful entry on 10 August 1991

6.  He was sentenced to a BCD and confinement for 115 days.

7.  On 23 March 1992, his sentence was approved and, except for the part of the sentence extending to the BCD, was directed to be executed.  He was credited with 115 days of confinement against the sentence to confinement.

8.  He was placed in an involuntary excess leave status on 30 March 1992.

9.  On 6 April 1992, Headquarters, U.S. Army Training Center, issued Orders Number 067-775 reassigning (diverting) him to the U.S. Army Personnel Control Facility, Fort Knox, KY, effective 7 April 1992.

10.  On 27 July 1992, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

11.  The U.S. Court of Military Appeals, Daily Journal, dated 14 January 1993, shows the applicant's petition for review of the decision of the U.S. Army Court of Military Review was granted and the decision of the U.S. Army Court of Military Review was affirmed.

12.  On 14 April 1994, the Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, issued General Court-Martial Order Number 108 directing the execution of the BCD.

13.  On 25 May 1995, he was issued a BCD in accordance with his affirmed sentence.

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

	a.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable or BCD) pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  Paragraph 3-7b provides that a general discharge (GD) 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.

15.  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.

16.  The Manual of Courts-Martial, rule 1113, (Execution of Sentences) states a dishonorable discharge or a BCD may not be order executed as all or part of the sentence of a court-martial when the convening authority takes initial action.  A dishonorable discharge or BCD may be ordered executed only after a final judgment has been rendered in the case.  Rule 1209 (Finality of courts-martial) states a court-martial conviction is final when review is completed by a Court of Criminal Appeals and the review is completed in accordance with the judgment of the Court of Appeals for the Armed Forces and a petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his BCD.

2.  In March 1992, he was convicted of assault with a dangerous weapon, assault consummated by battery, false swearing, and unlawful entry.  The applicant's contention that the convening authority did not direct the issuance of a BCD in his case on 23 March 1992 is correct; however, this is because the convening authority cannot execute this type of discharge until after the appeal process is completed.  The record shows that both the U.S. Army Court of Military Review and the U.S. Court of Military Appeals affirmed his sentence and upon completion of the appeals process his BCD ordered executed.  The approximate 2-year delay between his conviction and his discharge was only due to the lengthy appeals process.

3.  His conviction and sentence by a general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  

4.  In view of the foregoing, his request should be denied.

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)                                         AR20120008953



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ABCMR Record of Proceedings (cont)                                         AR20120008953



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