IN THE CASE OF:	  

		BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20130004706 


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 an honorable discharge (HD).

2.  He states he has been a minister and child counselor for over 20 years.  He is well respected in his community, and he is a loving husband and father of six.  He is requesting an upgrade of his discharge to honorable because he was attacked by four Soldiers after they left a bar.  He has been out of the military for 28 years and he has never been in any trouble with the law.  He served in the Army from April 1977 until he received a BCD in April 1984.  He only defended himself to avoid being killed.  

3.  He provides 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 served honorably in the Regular Army (RA) from 12 April 1977 until he was discharged for immediate reenlistment on 3 November 1980.  On
4 November 1980, he reenlisted in the RA and on 8 January 1981 he was promoted to sergeant/E-5.

3.  On 30 August 1983, Headquarters, 8th Infantry Division (Mechanized), issued General Court-Martial Order Number 51.  This order shows he pled guilty and was found guilty of the following offenses:

* on 11 March 1983, committing an assault upon a private first class (PFC) by cutting him on the torso with a dangerous weapon, to wit:  a knife
* on 14 March 1983, wrongfully and unlawfully making under lawful oath a false statement that he did not cut the PFC
* on 12 March 1983, stealing a construction light of a value of about $17.00

4.  He was sentenced to be reduced to private (PV1)/E-1, a forfeiture of $500.00 pay for 18 months, to be confined at hard labor for 18 months, and to be discharged with a BCD.  Only so much of the sentence as provided for a BCD, confinement for 1 year and 1 day, a forfeiture of $500.00 pay for 18 months, and reduction to PV1/E-1 was approved.  

5.  On 7 December 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 19 April 1984, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-11, with a BCD in accordance with the affirmed sentence.  He completed 6 years, 3 months, and 2 days of total active military service.  

7.  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 discharge or BCD) pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.

	c.  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.

8.  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 evidence of record does not support the applicant's request for an upgrade of his BCD to an HD.

2.  He pled guilty to and was convicted of assault with a dangerous weapon, making a false statement under oath, and stealing.  His conviction and sentence by general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given his BCD until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Military Review.  

3.  His statements concerning his post-service conduct and achievements and the length of time that has passed are noted.  However, none of these mitigate the serious offenses for which he was tried and convicted.  Further, while he may believe that he defended himself to avoid being killed he had the opportunity to make that argument during his court-martial and the appellate process.  

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.  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)                                         AR20130004706



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ABCMR Record of Proceedings (cont)                                         AR20130004706



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