IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140004311 


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).

2.  The applicant states, in effect, he and (person 1) were in the barracks when an altercation, which started as play, occurred between himself and person 1.  At some point, person 1's friend got involved and sided with person 1 against the applicant.  The applicant did not have a chance. 

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 on 18 February 1976 and held military occupational specialty 36K (Field Wireman).
3.  General Court-Martial (GCM) Order Number 18, issued by Headquarters, 21st Support Command, Germany, on 15 March 1978, convicted him of one specification of violating Article 128 of the Uniform Code of Military Justice (UCMJ), in that he did, at Bremerhaven, Germany, on the evening of on or about 28 September 1977, commit assault upon [a female German local national] by stabbing her in the back with a knife and did thereby intentionally inflict grievous bodily harm upon her, to wit: a deep cut.  His sentence was a reduction in grade to E-1; confinement at hard labor of 11 months, and forfeiture of $200.00 pay per month for a period of 11 months.  The sentence was adjudged on 
18 December 1977.

4.  GCM Order Number 135, issued by the U.S. Army Retraining Brigade, Fort Riley, KS, on 4 August 1978, suspended the unexecuted portion of the sentence to confinement at hard labor until 5 December 1978, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action.

5.  GCM Order Number 187, issued by the U.S. Army Retraining Brigade, Fort Riley, KS, on 27 September 1978, suspended the unexecuted portion of the approved sentence to forfeiture of $200.00 pay per month for 11 months, not subsequently modified, was suspended until 5 December 1978, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action.

6.  Special Court-Martial (SPCM) Orders Number, issued by Headquarters, 24th Infantry Division, Fort Stewart, GA, on 15 February 1980, convicted him of one specification of violating Article 128 of the UCMJ, in that he did, at Fort Stewart, GA, on or about 17 October 1980, commit an assault upon another Soldier by unlawfully striking him on the head with his hand and by striking at him with a dangerous weapon, to wit: a knife.  His sentence included confinement at hard labor of 6 months, forfeiture of $200.00 pay per month for a period of 
6 months, and to be discharged from the service with a BCD.  The sentence was adjudged on 12 December 1979.

7.  On 29 April 1980, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  Additionally, it appears the U.S. Military Court of Appeals reviewed his case; however, the final disposition of that review was not in his records.

8.  SPCM Order Number 119, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, NC, dated 10 December 1980, stated the sentence had been affirmed and would be dully executed.  The portion of the sentence pertaining to confinement had been served.
9.  On 24 December 1980, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a court-martial with a BCD.  He completed 3 years, 7 months, and 15 days of net active service with 139 days of lost time.

10.  Army Regulation 635-200:

	a.  chapter 11, in effect at the time, prescribe the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is 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.

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 evidence of record shows the applicant was convicted by two courts-martial, the last of which ordered his BCD.  In his first GCM he was convicted for assault by stabbing a young lady in the back, and the second SPCM was for hitting another Soldier in the head with his hand and attempting to strike the Soldier with a knife, or stab him.  His trial by 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 characterized the misconduct for which he was convicted.

2.  He provided no evidence to show his discharge or the court's decision to find him guilty is unjust or as a result of improper actions.  There is no error or injustice 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.  

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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

4.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge.

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)                                         AR20140004311





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ABCMR Record of Proceedings (cont)                                         AR20140004311



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