IN THE CASE OF:	  

		BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20130013525 


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, an upgrade of his bad conduct discharge to a general discharge.

2.  The applicant states, in effect, that his discharge should be upgraded for the purpose of obtaining veterans' medical benefits.  He states the type of discharge he received was unjust and the punishment was too severe because he was protecting himself.

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 for 3 years on 30 August 1974.

3.  On 25 April 1975, the applicant accepted nonjudicial punishment (NJP) for appearing in civilian clothes wearing a military jacket on Fort Hood, Texas, and for disobeying the order of a military policeman not to wear a military jacket with civilian clothes.

4.  On 6 January 1976, the applicant was convicted by a special court-martial of the following offenses:

* disobeying a lawful order to leave the company area and not to return
* assaulting another Soldier by throwing a trash can at him
* assaulting an individual by hitting him in the head with a glass bottle and intentionally inflicting grievous bodily harm (a laceration requiring 18 stitches)
* assaulting an individual by striking him in the chest with a board and intentionally inflicting grievous bodily harm (severe bruises of the ribs)

5.  The applicant was sentenced as follows:

* forfeiture to $240.00 pay per month for 3 months
* reduction to pay grade E-1
* confinement at hard labor for 100 days
* bad conduct discharge

6.  The convening authority approved the sentence as adjudged, but only so much of the offenses charged as provided for:

* assaulting another Soldier by throwing a trash can at him
* assaulting an individual by hitting him in the head with a glass bottle and intentionally inflicting grievous bodily harm (a laceration requiring 18 stitches)
* assaulting an individual by striking him in the chest with a board and intentionally inflicting grievous bodily harm (severe bruises of the ribs)

7.  The U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact and affirmed the findings of guilty and the sentence.

8.  Headquarters, US Army Field Artillery Center and Fort Sill Special                   Court-Martial Order Number 59, dated 18 October 1976, noting that the sentence had been finally affirmed, ordered the sentence executed.

9.  On 27 October 1976, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a duly reviewed and affirmed special court-martial conviction.  He completed 1 year, 9 months, and 28 days of total active service.  He was issued a bad conduct discharge.

10.  There is no evidence in the available records showing the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

11.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed.

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

	a.  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.

	b.  Paragraph 3-11 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a special court-martial of assaulting other individuals and intentionally inflicting grievous bodily harm.  He was discharged as a result of a duly reviewed and affirmed special court-martial conviction.  He has not provided any evidence to show the type of discharge he received was in error or unjust.  Therefore, the bad conduct discharge he received appropriately characterized his service.

2.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefor 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)                                         AR20130013525



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ABCMR Record of Proceedings (cont)                                         AR20130013525



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