BOARD DATE:	 6 November 2014 

		DOCKET NUMBER:  AR20140005695 


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 that his bad conduct discharge (BCD) be upgraded to a more favorable discharge.

2.  The applicant states that the U.S. Army Criminal Investigation Command (CID) was conducting an investigation and needed to justify its efforts and time so he was targeted.  The CID focused its energy on him and he was set up, targeted, and harassed.  He was mentally unstable at the time and was in a different place and now desires to have his discharge upgraded. 

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army with a moral waiver on 4 March 1974 for a period of 2 years.  He completed his one-station unit training as a combat engineer at Fort Leonard Wood, Missouri and was transferred to Germany on 30 July 1974.

2.  On 4 June 1975, nonjudicial punishment was imposed against him for being absent from his place of duty. 

3.  On 9 December 1975, the applicant was convicted by a general court-martial pursuant to his plea of the wrongful sale of heroin.  He was sentenced to confinement at hard labor for 9 months, reduction to the pay grade of 
private/ E-1, forfeiture of all pay and allowances, and a BCD.
4.  On 2 June 1977, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

5.  On 26 August 1977, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He completed 2 years, 10 months, and 21 days of total active service and had 216 days of time lost due to confinement.

6.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, that the 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.

7.  Army Regulation 635-200 (Personnel Separations), 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.

8.  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 contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his otherwise undistinguished record of service.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.


4.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the 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)                                         AR20140005695





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ABCMR Record of Proceedings (cont)                                         AR20140005695



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