BOARD DATE:	  12 September 2013

		DOCKET NUMBER:  AR20130002730 


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 his bad conduct discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states it's been over 20 years and he would like his discharge upgraded for employment reasons.  He only had one incident which led to a court-martial fresh out of high school.  

3.  The applicant provides no additional evidence in support of his application.

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.  On 27 February 1985, he enlisted in the Louisiana Army National Guard (LAARNG) at the age of 17.  
3.  He completed a period of active duty for training (ADT) to complete basic combat training from 5 June to 8 August 1985.

4.  He graduated from high school on 19 May 1986.

5.  He was ordered to report to ADT on 3 June 1986 for "split training option - advanced individual training."

6.  On 7 August 1986, he pled guilty and was found guilty before a general court-martial of:

* wrongfully possessing a knife with a blade in excess of three inches in length
* assaulting a private by holding in the face of the private a dangerous weapon, a means likely to produce death or grievous bodily harm
* assaulting a private first class by pointing a dangerous weapon, a means likely to produce death or grievous bodily harm

7.  His sentence consisted of:

* reduction to private/pay grade E-1
* forfeiture of all pay and allowances
* confinement for 7 months
* issuance of a bad conduct discharge

8.  On 17 September 1986, the convening authority approved the sentence.

9.  On 16 October 1986, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

10.  On 5 December 1986, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

11.  On 14 April 1987, his bad conduct discharge was ordered executed.  On 
28 April 1987, he was released from active duty, discharged from the Reserve of the Army, and returned to his LAARNG unit.  He completed 5 months and 
23 days of active service that was characterized as bad conduct.

12.  On 15 May 1987, the LAARNG discharged the applicant with a bad conduct discharge.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  An honorable discharge was a separation with honor and entitled 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 have been clearly inappropriate.

	c.  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.  

14.  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 age at time of enlistment was noted.  However, many Soldiers enlisted at a young age, entered active duty immediately after high school, and went on to complete their enlistments and receive honorable discharges.  Therefore, his situation was not unique and cannot be used as a reason to change a properly-issued discharge.  The ABCMR does not upgrade discharges based solely on the passage of time.

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

3.  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.  The sentence, for a conviction that included two charges of assault with a deadly weapon, does not appear to be too severe.

4.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to a general discharge under honorable conditions or an honorable 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)                                         AR20130002730



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ABCMR Record of Proceedings (cont)                                         AR20130002730



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