IN THE CASE OF:	   

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140017743 


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.

2.  The applicant states his discharge status was not changed.  He had over a year of honorable service.  This should be taken into consideration and his status should reflect only a portion of his service to our country.  He has suffered for 30 years because of a mistake as a young Soldier.  He should be able to receive some benefits at some point for the honorable portion of his service.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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's records show he enlisted in the Regular Army on 18 June 1980 and he was trained in and held military occupational specialty 13F (Fire Support Specialist). 

3.  His DA Form 2-1 (Personnel Qualification Record) is not available for review with this case.  However, other documents in his service record indicate he served in Germany with 2nd Battalion, 33rd Field Artillery.  

4.  His records show, while in Germany, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 6 April 1981, unlawfully striking one individual on the face with his hands, unlawfully striking another individual on the face with his hands, wrongfully communicating a threat, and being drunk and disorderly
* 8 May 1981, being drunk and disorderly 
* 20 January 1982, wrongfully engaging in a fist fight at the enlisted club, being drunk and disorderly, assaulting a sergeant by striking him on the face, and wrongfully communicating a threat to kill a sergeant

5.  Following his assignment to Germany, he was reassigned to Fort Stewart, GA.  He was assigned to 2nd Battalion, 35th Artillery.  

6.  On 29 July 1982, he accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from 21 to 26 July 1982.  

7.  On 23 February 1983, he was arraigned and tried at a special court-martial at Headquarters, 24th Infantry Division, Fort Stewart, for violating the UCMJ.  Consistent with his plea, he was convicted of Charge I, one specification of assaulting another Soldier by cutting him in the lower right chest with glass from a broken bottle.  

8.  The court sentenced him to a reduction to the lowest enlisted grade, forfeiture of $300 pay per month for 3 months, confinement at hard labor for 3 months, and a bad conduct discharge. 

9.  On 10 March 1983, the convening authority approved the sentence as provided for reduction to the lowest enlisted grade, forfeiture of $300 pay per month for 3 months, confinement at hard labor for 3 months, and a bad conduct discharge and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

10.  On an unknown date, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

11.  There is no indication he petitioned the U.S. Court of Military Appeals for a grant of review with respect to any matters of law. 

12.  Headquarters, 24th Infantry Division, Fort Stewart, Special Court-Martial Order Number 19, dated 10 September 1983, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

13.  The applicant was discharged on 31 October 1983.  His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial in accordance with Army Regulation 635-200 (Enlisted Personnel Separations), chapter 3, with a bad conduct discharge.  This form further shows he completed 3 years, 2 months, and 1 day of creditable active military service with lost time from 21 to 25 July 1982 and from 28 February to 4 May 1983. 

14.  There is no indication he petitioned the Army Discharge Review Bard for an upgrade of his bad conduct discharge within that board's 15-year statute of limitations. 

15.  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.

16.  Army Regulation 635-200, 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.

17.  Army Regulation 635-200, 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a special court-martial was warranted by the gravity of the offense 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 as evidenced by multiple instances of NJP for serious offenses and his conviction by a special court-martial.  His service 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 an upgrade of his bad conduct 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)                                         AR20140017743





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ABCMR Record of Proceedings (cont)                                         AR20140017743



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