RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 26 February 2004
         DOCKET NUMBER: AR2003088833


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Carolyn Wade		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. John T. Meixell		Member
Ms. Mae M. Bullock		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests review and reversal of his bad conduct discharge (BCD).

2. The applicant makes no statement.

3. The applicant provides no supporting documents.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 17 November 1977. The application submitted in this case is dated 10 March 2003 and was received in this office on 14 April 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant's military records show he enlisted in the Regular Army on 7 September 1973 for a period of 3 years and training in military occupational specialty (MOS) 05F (Radio Operator). Following completion of all required military training, the applicant was awarded MOS 05E (Voice Radio Operator) and was assigned to Germany as his first permanent duty station.

4. The applicant's military records show that he was promoted to the rank of private/E-2 on 30 December 1973 and to the rank of private first class/E-3 on 1 February 1974.

5. On 4 April 1975, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being disrespectful in language toward his superior noncommissioned officer (NCO). His punishment consisted of forfeiture of $50.00 pay per month for 1 month, reduction in rank to private/E-2 (suspended for 30 days), 14 days' extra duty, and an oral reprimand.

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6. On 15 July 1975, the applicant accepted NJP for failing to obey a lawful order by sleeping on guard post. His punishment consisted of reduction in rank to private/E-2 (suspended for 60 days until 12 September 1975), forfeiture of $50.00 pay per month for 1 month, 7 days' extra duty, and an oral reprimand.

7. On 11 August 1975, the suspension of the punishment of reduction in rank to the grade of private/E-2 was vacated and the unexecuted portion of the punishment was executed.

8. On 13 August 1975, the applicant accepted NJP for violating a lawful general regulation by wrongfully possessing .2 grams of amphetamine, a controlled substance. His punishment consisted of reduction in rank to private /E-1, and forfeiture of $170.00 pay per month for 2 months.

9. On 7 May 1976, the applicant, appearing before a military judge only, was tried by a general court-martial. He pled guilty to the charges of wrongfully possessing .03 grams of heroin, a habit forming narcotic drug, and wrongfully selling heroin.

10. The applicant was convicted by a general court-martial of the above charges and was sentenced to a BCD, confinement at hard labor for 1 year, reduction in rank to private/E-1, and forfeiture of all pay and allowances. The sentence was approved on 14 May 1976, but only so much of the sentence as provided for 1 year of confinement at hard labor, reduction in rank to private/E-1, and forfeiture of all pay and allowances was ordered executed as adjudged. The applicant was confined at the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

11. On 11 February 1977, the unexecuted portion of the sentence to forfeiture of all pay and allowances was remitted and the accused was restored to duty pending completion of appellate review.

12. On 3 February 1977, the applicant requested that he be granted indefinite excess leave pending appellate review.

13. On 16 September 1977, the United States Army Court of Military Review completed the appellate review. The sentence was affirmed and the BCD was ordered executed. Accordingly, on 17 November 1977, the applicant was discharged with a BCD pursuant to his sentence by general court-martial. He was credited with 3 years, 5 months, and 1 day of active military service and 280 days of lost time due to confinement.

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14. Army Regulation (AR) 635-200, then in effect, stated that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD. The appellate review must be completed and the affirmed sentence ordered duly executed.

15. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process. The Board 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. Trial by court-martial was warranted by the gravity of the offense charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2. The evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed by the court-martial. Absent any issues presented by the applicant, a thorough review of the applicant’s record found no cause for clemency.

3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 November 1977; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 16 November 1980. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

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BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__aao___ __jtm___ __mmb___ DENY APPLICATION

1. The Board determined that 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.

2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



                           Arthur A. Omartian
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088833
SUFFIX
RECON
DATE BOARDED	20040226
TYPE OF DISCHARGE	(BCD)
DATE OF DISCHARGE	19771117
DISCHARGE AUTHORITY	AR 635-200, Chap 11
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.6800
3.
4.
5.
6.