IN THE CASE OF:	

		BOARD DATE:	    17 April 2014

		DOCKET NUMBER:  AR20130014427 


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 an honorable discharge or a general discharge.

2.  The applicant states:

* he was the victim of racial discrimination and racial profiling 
* he was attacked by two Caucasian enlisted personnel 
* he protected himself but he was the one court-martialed
* his attackers were intoxicated and this information was kept out of the hearing
* he received unjust and unfair treatment when he was attacked
* he was being seen by mental health before the incident
* he was arrested and put on restriction during his last 8 months and court-martialed 30 days short of the end of his term of service
* he was confined to hard labor for 6 months after he was due to be released from the Army
* he believes he received unusual and cruel punishment
* he was having problems and wanted to discuss them with his superiors but he was belittled instead of being helped
* he was returning from emergency leave after the death of his mother
* he completed over 90 percent of his enlistment
* his medical records should show he underwent psychological and physical damages prior to being court-martialed
* he suffered the hardships of any other Soldier
* he served in an overseas environment and performed his job well
* he desires help for the mental, emotional, as well as physical injuries he sustained while he was enlisted

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 6 February 1980.

3.  On 12 March 1981, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for disobeying an order.

4.  A letter contained in his files, dated 4 November 1981, shows he had a bar to reenlistment lifted based on his outstanding job performance and improved personal appearance.

5.  On 7 July 1982, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for communicating a threat, disobeying a lawful order, and using disrespectful language toward a superior noncommissioned officer (NCO).

6.  Summary Court-Martial Order Number 1, issued by Headquarters, 2nd Brigade, 3rd Infantry Division, dated 21 September 1982, shows:

   a.  The applicant was charged with assaulting another Soldier by striking him in the head with a dangerous weapon, a beer mug.

   b.  The applicant pled not guilty to the charge but he was found guilty and sentenced to a reduction in rank/grade from private/E-2 to private/E-1, a forfeiture $300 pay for 1 month, and restriction for 1 month.  His sentence was adjudged on 23 August 1982.

7.  On 27 September 1982, a bar to reenlistment request was initiated.  On 14 October 1982, the request was approved.

8.  Special Court-Martial Order Number 78, issued by Headquarters, 3rd Infantry Division, dated 7 April 1983, shows the applicant was charged with:

a. Charge 1:  Violation of the Uniform Code of Military Justice (UCMJ), 
Article 91.

   *	Specification 1:  disobeying an order
*	Specification 2:  using disrespectful language and sticking his hand in the face of an NCO
*	Specification 3:  assaulting an NCO by striking him on the left side of the head with his hands

b. Charge II:  Violation of the UCMJ, Article 128.

*	Specification 1:  unlawfully striking another Soldier on the arm and leg with means likely to produce grievous bodily harm, to wit:  a baseball bat
*	Specification 2:  wrongfully assaulting another Soldier by striking him with a knife

9.  The applicant pled not guilty to the charges and was found guilty of all Specifications of Charge 1 and not guilty of both Specifications of Charge II.  He was sentenced to a forfeiture of $250 pay for 4 months, confinement at hard labor for 4 months, and to be discharged from the service with a bad conduct discharge.  His sentence was adjudged on 16 February 1983.

10.  The U.S. Army Court Military Review, dated 9 January 1984, shows a Memorandum Opinion, which states:

		Prior to hearing evidence on the merits, the military judge determined
that Specification 3 of Charge 1 did not allege a violation of Article 91, UCMJ (assault upon a noncommissioned officer in the execution of his office).  The military judge did not direct a change in the charge to reflect his fact.  The military judge subsequently found the appellant guilty of all Specifications of Charge I and Charge I.  His verdict was inconsistent with his earlier ruling; the findings as to Specification 3 should have reflected the appellant's guilt of a violation of Article 128, Uniform Code of Military Justice.  We will correct this error below.  Testing for prejudice, we find none.

11.  Special Court-Martial Order Number 53, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, dated 29 May 1984, shows that only so much of the finding of guilty as to the amended Specification 3 of Charge 1 was affirmed.  The remaining findings of guilty and the approved sentence to a bad conduct discharge, confinement at hard labor for 4 months, and a forfeiture of $250 pay for 4 months as adjudged on 16 February 1983 were affirmed.

12.  On 23 May 1983, the applicant completed his confinement.

13.  On 11 June 1984, the applicant was discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations) with a bad conduct discharge.  This form further shows he completed 4 years and 29 days of creditable military service and he had lost time from 16 February to 22 May 1983.

14.  The applicant does not provide any evidence showing he was discriminated against or that he filed a discrimination complaint.

15.  Army Regulation 635-200 provides for the separation of enlisted personnel:

	a.  Paragraph 3-7a provides that an honorable discharge (HD) 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.

	b.  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.

	c.  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 ordered duly executed.

16.  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 a special court-martial was warranted by the gravity of the offenses 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.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence was ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this Board 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.

4.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  He is not entitled to the requested relief.

5.  The applicant's contention that he was discriminated against it noted; however, there is no evidence in the available records, or any evidence provided by him, that supports he was discriminated against.  This is a contention that could have been raised in the judicial and appellate process and finally and conclusively adjudicated. 

6.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for benefits that are available to Soldiers who serve honorably.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.
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)                                         AR20130014427



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ABCMR Record of Proceedings (cont)                                         AR20130014427



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