IN THE CASE OF: 

		BOARD DATE: 27 June 2013

		DOCKET NUMBER:  AR20120021676 


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, change of the words "aggravated" and "breaking and entering" of his court-martial charges and upgrade of his dishonorable discharge.

2.  The applicant states that M----- let him into his room and they had a lover's quarrel.  Instead of him putting the applicant out of his room, he ran out into the hallway and started yelling "this guy broke into my room."  He ran and M----- and others ran after him, beating him with sticks and bricks.  He then brandished a pocket knife.  The other Soldiers were all given immunity.  If he had not taken the agreement he would have done 10 years.  He believes it was self-defense and no way did he break into the other Soldier's room.  He received a fractured skull and fractured eye socket leaving him with permanently blurred vision in his left eye.  He was very hurt and embarrassed because he was gay at the time and he could have been court-martialed for that also.  He has changed and asks for forgiveness.

3.  The applicant provides copes 1 and 4 of his 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 25 August 1982.  He completed training and he attained the rank/grade of private first class (PFC)/E-3.

3.  At an 18 September 1985 general court-martial the applicant pled guilty to:

* three specifications of aggravated assault with a means likely to produce death or grievous bodily harm
* one specification of attempted burglary

4.  The court sentenced him to forfeiture of all pay and allowances, confinement for 10 years, and a dishonorable discharge.

5.  On 18 September 1985, the convening authority approved the sentence; however, any confinement in excess of 4 years was suspended for 18 months, to be remitted without further notice unless sooner vacated.

6.  On 30 December 1985, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  On 29 January 1986, the applicant petitioned the U.S. Court of Military Appeals to review his conviction.  The record of the outcome of that appeal was not available for review.

8.  However, General Court-Martial Order Number 255, issued by the U.S. Disciplinary Barracks, U. S. Army Combined Arms Center, Fort Leavenworth, KS, dated 1 July 1986, shows the approved sentence had been affirmed.  Therefore, the provisions of Article 71(c) having been complied with, the sentence would be duly executed.

9.  On 8 August 1986, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged in accordance with 

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-10, as a result of court-martial with a dishonorable discharge.  He had completed 2 years, 10 months, and 19 days of creditable active military service with 1 year and 27 days of time lost.
 
10.  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.

11.  Army Regulation 635-200 governs the separation of enlisted personnel.  

	a.  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.

	b.  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.  

	c.  Paragraph 3-10 stipulates that a Soldier would be given a dishonorable or a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not provide any evidence to support his assertions that he acted in self defense and did not break into the other Soldiers room.

2.  Pursuant to his pleas, the applicant was convicted by a general court-martial that was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for 

which he was convicted.  Had he disputed the charges against him, or any portions thereof, the court-martial forum would have been the place for him and/or counsel to do so.  However, it appears he accepted the charges against him based on his pleas of guilty.

3.  All appellate reviews were completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

4.  In view of the above, he is not entitled to the relief requested.

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

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)                                         AR20120005678



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ABCMR Record of Proceedings (cont)                                         AR20120021676



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