IN THE CASE OF:	

		BOARD DATE:	    18 March 2014

		DOCKET NUMBER:  AR20130011983 


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, clemency and an upgrade of his bad conduct discharge (BCD).

2.  He states, in effect:

* He has not been in trouble since his discharge from the military
* He is married, has two kids of his own, his wife has four other kids, and he has just gotten custody of his 7-year-old son
* He has been a productive citizen since 1984 
* He believes everyone is entitled to a second chance and he believes he has paid his debt
* He is requesting an upgrade of his discharge so that he may have access benefits to include compensation, education, and health entitlements

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two character references.  

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 17 February 1981.

3.  On 1 December 1981, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully possessing some amount of marijuana.  

4.  On 12 April 1983, he was convicted by a general court-martial of the following offenses:

   a.  Violating a lawful general regulation by possessing a knife with a locking blade three inches long or longer as measured from the hilt to the point of the blade;
   
   b.  Unlawfully striking a private first class (PFC) on the arm with a knife; and 
   
   c.  Committing an assault upon a specialist four (SP4) by cutting him in the chest, abdomen, right arm, and right hand area repeatedly with a knife; thereby intentionally inflicting grievous bodily harm upon him.

5.  He was sentenced to be reduced to the grade of E-1, a forfeiture of all pay and allowances, confinement at hard labor for 1 year, and to be discharged from the service with a BCD.

6.  On 22 June 1983, the sentence was approved.

7.  On 10 April 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  The applicant was given administrative credit for pretrial confinement.  On 3 August 1984, the BCD was ordered to be executed.  

8.  On 15 August 1984, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, section IV as a result of court-martial with a BCD.  He completed 2 years, 7 months, and 1 day of creditable active service with approximately 328 days of lost time.

9.  He provided two character references from a friend and his pastor who attested he demonstrates incredible leadership qualities and shows respect for his employees and others.  He also has excellent work ethics, charitable, and is an active member of the church 

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  

   a.  Paragraph 3-10 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

	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.

11.  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 trial by court-martial was warranted by the gravity of the offenses charged.  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.  

2.  The applicant's contentions regarding his post service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

3.  The applicant states he is requesting an upgrade of his discharge to have access to benefits to include compensation, education, and health entitlements.  However, the ABCMR does not amend/or correct military records solely for the purpose of making the applicant eligible for benefits.   

4.  His service record shows he received an Article 15 for possessing some amount of marijuana and a conviction by a general court-martial for violating a general regulation, unlawfully striking a PFC, and assaulting a SP4.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an honorable or a general discharge.

5.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for clemency or for an upgrade of his BCD.  

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)                                         AR20130011983



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ABCMR Record of Proceedings (cont)                                         AR20130011983



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