BOARD DATE: 4 February 2014 DOCKET NUMBER: AR20130008936 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 upgrade of his bad conduct discharge (BCD). 2. The applicant states he was only defending himself during an attack by a homosexual. 3. The applicant provides no supporting documentation. 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 on 4 December 1975, completed training, and was awarded military occupational specialty 11B (Infantryman). Following training he was assigned to duty in Germany. 3. He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on: * 24 February 1977, for being absent without leave (AWOL) from 10 to 13 January 1977 * 22 June 1977, for failure to go to his place of duty 4. On 9 October 1977, the applicant was involved in an incident with a German national that resulted in him being charged with violation of Article 122 (robbery - by force and violence) and Article 128 (assault). 5. General Court-Martial Order Number 6, dated 13 March 1978, shows the applicant was found guilty on the robbery charge and sentenced to confinement for two years, forfeiture of all pay and allowances, and a BCD. 6. The findings and sentence were approved on 13 March 1978. The applicant was placed in confinement pending review of his court-martial by the Court of Military Review. 7. U.S. Disciplinary Barracks, Fort Leavenworth General Court-Martial Order Number 649, dated 15 November 1978, directed that as the findings and sentence had been affirmed and the provisions of Article 71(c) UCMJ having been complied with, the sentence to confinement was ordered to be executed. 8. The applicant was discharged on 9 July 1979 with a BCD. He had 2 years and 11 months of service with 584 days of lost time due to incarceration. His record contains no indication of any personal awards or commendations. 9. U.S. Disciplinary Barracks, Fort Leavenworth Order Number 130-7, dated 18 September 1979, shows the applicant was released from confinement on 19 September 1979 due to expiration of sentence and authorized travel at government expense. 10. The statutory authority under which this Board was created (Title 10, U.S. Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction. 11. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. DISCUSSION AND CONCLUSIONS: 1. While the Board cannot disturb the finality of a court-martial conviction, it can recommend a lessening of the sentence if there is sufficient evidence to show that the applicant's discharge was in error or that there was an injustice in the sentence or that the applicant's service was so meritorious as to outweigh the charges. 2. In addition to the court-martial charges, the applicant also exhibited additional misconduct as noted by his two NJP's. 3. There is no evidence to show the applicant was "only defending himself" during the incident that led to the court-martial, but that he perpetrated a robbery. 4. Therefore, there is insufficient evidence to warrant an upgrade of the applicant's 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) AR20130008936 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130008936 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1