BOARD DATE:	  4 March 2014

		DOCKET NUMBER:  AR20130011800 


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 to a general discharge.

2.  The applicant states he served on active duty in Germany.  The eligibility for most benefits from the Department of Veterans Affairs is based solely on being  discharged from the active service under other than dishonorable conditions and with a veteran serving for at least 180 days of active duty to qualify.  He received benefits when he was discharged, but the board has not looked at his records.  He just never thought he would have the type of medical issue he now has.  He acquired the problem in the Army.  He never had any pre-service convictions prior to enlisting.  

3.  The applicant provides copies of his enlistment and separation Standard Forms (SF) 93 (Report of Medical History) and 88 (Report of Medical Examination), DA Form 3647-1 (Clinical Record Cover Sheet), SF 601 (Health Record – Immunization Record), SF 603 (Health Record – Dental), DD Form 214 (Report of Separation from Active Duty), and a letter to the VA Secretary.

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 December 1972 and he held military occupational specialty 13B (field artillery crewman).  He was advanced to pay grade E-3 on 8 June 1973.  He served in Germany from 26 June 1973 through 19 June 1974.  

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for:

* 13 November 1973 – wrongfully appearing without his hat, with only one private first class rank insignia on his collar, and with his field jacket unbuttoned; disobeying a lawful order; and being derelict in the performance of his duty
* 29 August 1973 – assault and wrongfully communicating a threat to injure a Soldier and wrongfully using provoking words

4.  On 8 February 1974, he was convicted by a special court-martial of one specification of assault by stabbing a Soldier in the left front side with a knife lacerating said Soldier's diaphragm and perforating his spleen on 3 December 1973.  He was sentenced to confinement for 6 months, reduction to E-1, a forfeiture of pay, and a bad conduct discharge.

5.  On 18 May 1973, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, reduction to pay grade E-1, forfeiture of pay, and confinement for 5 months, and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 31 July 1975, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case.

8.  Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, GA, Special Court-Martial Order Number 57, dated 26 September 1975, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.
9.  Accordingly, the applicant was discharged in pay grade E-1 on 24 October 1975, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 11, as a result of a court-martial.  He was issued a bad conduct discharge.  He completed 2 years, 5 months, and 26 days of net active service with 135 days of time lost.

10.  On 1 May 1981, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 11 - An enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed. 

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

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

12.  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 court-martial 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 shows the applicant was convicted by a special court-martial of assault upon another Soldier and was sentenced to a bad conduct discharge.  His discharge was affirmed and he was discharged accordingly on 24 October 1975.

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

3.  Trial by court-martial was warranted by the gravity of the offense 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 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)                                         AR20130011800



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ABCMR Record of Proceedings (cont)                                         AR20130011800


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