BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130002196 


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) to honorable.

2.  The applicant states an injustice occurred when the situation happened.  He wanted to stay in the Army and retire.  His chain of command was new and desperate to make a name for themselves.  His record of trial alone proved that the other guy started everything and threatened him first.  His record of trial should speak for itself.

3.  The applicant provides no additional evidence.

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 14 November 1989.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  He was promoted to pay grade E-4 on 14 April 1992.

3.  On 25 July 1995, he was convicted by a general court-martial of:

* two specifications of assault on or about 24 May 1995
* one specification of communicating a threat on or about 24 May 1995
* one specification each of wrongfully using and wrongfully possessing marijuana on or about 25 May 1995

4.  He was sentenced to reduction to pay grade E-1, forfeiture of pay for 6 months, confinement for 4 months, and a BCD.

5.  On 10 June 1996, the convening authority approved the sentence, except for the BCD.

6.  There is no indication he petitioned the U.S. Court of Military Appeals for a review of his conviction.

7.  His records are void of the Record of Trial; however, General Court-Martial Order Number 67 issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 10 April 1998, shows the sentence to a BCD was affirmed and was ordered duly executed.

8.  On 17 June 1998, he was discharged accordingly in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, as a result of court-martial.  He completed 8 years, 3 months, and 14 days of net active service with time lost from 14 May through 31 August 1995.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

	c.  Paragraph 3-11 provided that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

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 change a discharge due to matters which should have been raised in the appellate process, 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 evidence of record shows the applicant was convicted by a general court-martial of assault, communicating a threat, and wrongfully using and possessing marijuana.  On 17 June 1998, he was discharged pursuant to the sentence of his general court-martial and he was issued a BCD after the sentence was affirmed.

2.  He provided no evidence to show his discharge was unjust.  There is no error or injustice apparent in his records.  There is also no evidence that his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to an honorable or a general discharge.  He was properly discharged in accordance with pertinent regulations with due process and no violation of his rights.

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

4.  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 his offenses and absent any mitigating factors, the type of discharge directed and the reasons 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 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)                                         AR20130002196



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ABCMR Record of Proceedings (cont)                                         AR20130002196



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