IN THE CASE OF:    

		BOARD DATE:  2 October 2014  	  

		DOCKET NUMBER:  AR20140001408 


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.  The applicant states he would like to have his records reviewed in case there is an injustice.  He feels it was unjust to incarcerate him one day before he was to depart the military.  He served 13 years in the military including time in Desert Storm.  He states he has not been incarcerated again.

3.  The applicant provides no additional documentary 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.  On 12 February 1988, with prior service, the applicant enlisted in the RA for 4 years, which established his expiration term of service date as 11 February 1992).  He held military occupational specialty 94B (Food Service Specialist).  The highest rank he held was specialist four/pay grade E-4.

3.  On 24 August 1992, Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, issued General Court-Martial Order Number 17.  This order shows he pled guilty and was found guilty of the following offenses:

* willfully disobeying a command of his superior noncommissioned officer on or about 22 January 1992
* committing an assault upon another person with the means likely to produce death or grievous bodily harm on or about 7 December 1991
* attempting to alter the testimony of another person as a witness before a court-martial on or about 22 January 1992

4.  He was sentenced to be discharged with a BCD and to be confined for 2 years.  The sentence was approved.  The sentence with regard to confinement was directed to be executed with the exception of that part of the sentence adjudging confinement in excess of 24 months which was suspended for 24 months, at which time, unless the suspension was sooner vacated, the suspended part of the sentence was to be remitted without further action.

5.  On 16 July 1993, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 24 February 1994, Headquarters, United States Army Field Artillery Center and Fort Sill, issued General Court-Martial Order Number 13.  It shows the applicant's sentence had been affirmed.  The portion of his sentence pertaining to confinement had been served.  Article 71(c) having been complied with, the convening authority ordered his BCD executed.

7.  On 18 March 1994, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, with a BCD in accordance with the affirmed sentence.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years and 15 days of net active military service during this period and 1 year and 9 months of prior inactive service.  He had time lost from 24 June 1992 to 15 July 1993. 

8.  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.

	d.  Chapter 1, in effect at the time, stated a Soldier could be retained after his or her term of service expired when an investigation of his or her conduct had been started with a view of trial by court-martial or when charges had been preferred.  It further stated that a Soldier, who was awaiting trial or result of trial by court-martial when he or she would otherwise be eligible for discharge or release from active duty, would not be discharged or released until final disposition of the court-martial charges.

9.  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 contends it was unjust to incarcerate him 1 day before his term of service expired.  Evidence indicates he was retained after his term of service with a view of trial by court-martial for offenses which he was later convicted of committing prior to expiration of his term of service.  Therefore, there appears to be no injustice in this regard.


2.  He pled guilty to and was convicted of willfully disobeying a command of his superior noncommissioned officer, committing an assault upon another person with the means likely to produce death or grievous bodily harm, and attempting to alter the testimony of another person as a witness before a court-martial.  His conviction and sentence by a general court-martial was 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 records do not show any significant acts of achievement or valor during his military service.

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)                                         AR20140001408



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ABCMR Record of Proceedings (cont)                                         AR20140001408



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