RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060010658 


	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. Gerard W. Schwartz

Acting Director

Mr. Andrew C. Jacobs

Analyst

The following members, a quorum, were present:


Mr. John Meixell

Chairperson

Mr. Thomas Ray

Member

Ms. Rea Nuppenau

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

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


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge be upgraded to a general discharge. 

2.  The applicant essentially states that he never sold marijuana to a Criminal Investigation Division (CID) agent, but rather, gave marijuana to the CID agent.  He also states, in effect, that the CID agent kept the money, and said he gave it to him, but that this was not true.  He further states that this CID agent was later found guilty of fraud, but that the applicant’s military records were never corrected. 

3.  The applicant provides no additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 8 April 1982, the date of his bad conduct discharge from the Regular Army.  The application submitted in this case is dated 21 July 2006.

2.  The applicant’s military records show that he enlisted in the Regular Army on 
1 August 1978.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 16P (Air Defense Artillery Short Range Missile Crewman).  

3.  Between December 1978 and February 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions.  His offenses included being absent without leave (AWOL) from 3 February 1979 to 7 February 1979, and failing to go at the time prescribed to his appointed place of duty on two occasions.  Collectively, his punishment consisted of reduction in rank from private first class/pay grade E-3 to private/pay grade E-2, forfeiture of $172.00, 24 days of extra duty, and 
24 days of restriction.

4.  On 24 May 1979, the applicant was discharged under paragraph 5-31 (Expeditious Discharge Program), Army Regulation 635-200 (Enlisted Personnel) for demonstrating a total lack of necessary motivation, discipline, and proper attitude to become a productive Soldier.  His commanding officer stated that the applicant could not cooperate with his peers, and would not do his share of work. His commanding officer also stated, in pertinent part, that the applicant had an attitude of thinking that he could do whatever he wished, whenever he wanted to, and that it was proven many times when he had not been at his appointed place of duty at the appointed time.  The applicant’s DD Form 214 (Report of Separation From Active Duty) that was issued at the time of this discharge shows that he was issued a general discharge.  It was noted that his separation packet stated that he would not be permitted to apply for reenlistment in the United States Army within 2 years from the date of his discharge.  

5.  On 2 October 1979, the applicant somehow managed to reenlist in the Regular Army after less than 5 months since his general discharge.    

6.  On 5 May 1981, the applicant was tried and convicted by a special court-martial for wrongfully introducing some amount of marijuana into a military base, wrongfully selling some amount of marijuana, wrongfully transferring .31 grams, more or less, of marijuana to another Soldier, wrongfully selling 28 grams and 
59 grams, more or less, of marijuana to the same Soldier, and wrongfully introducing marijuana on to a military base and fraudulent enlistment, in that he failed to disclose his prior service when he enlisted for the second time.  He was sentenced to be reduced to the grade of E-1, to be confined at hard labor for 100 days, which was later reduced to confinement at hard labor for 60 days by the convening authority, and to be discharged from the service with a bad conduct discharge.  The convening authority also disapproved the finding of guilty as to fraudulent enlistment.  On 7 May 1981, he was placed in confinement.  He was released from confinement on 1 July 1981, after being in confinement for 
56 days.  He was then assigned to the United States Army Personnel Control Facility at Fort Bragg, North Carolina.

7.  On 26 January 1982, after recently returning from being AWOL, the applicant requested that he be attached to a line unit for duty under the Clemency Program while he was pending the appellate review process on his bad conduct discharge.  He understood that this attachment would be for evaluation, and that his duty performance would have direct bearing on any future request for clemency that he may submit.  His entire chain of command recommended disapproval, and essentially stated that the applicant had not demonstrated the desire or performance worthy of entering the Clemency Program at that time.  On 5 March 1982, the proper authority disapproved the applicant’s request for the Clemency Program

8.  On or about 9 February 1982, the applicant accepted NJP under Article 15 of the UCMJ for going AWOL from 14 December 1981 to 5 January 1982.  His punishment consisted of forfeiture of $128.00 per month for 1 month, which was suspended until 7 March 1982.

9.  Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina Special Court-Martial Order Number 42, dated 30 March 1982, shows that the applicant’s findings and sentence by his special court-martial were affirmed.  On 8 April 1982, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial order, and was issued a DD Form 259A (Bad Conduct Discharge Certificate).  His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows, in pertinent part, that the narrative reason for his discharge was that it was as the result of a court-martial.

10.  On 13 February 1987, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

11.  The applicant essentially stated that he never sold marijuana to a CID agent, but rather, gave marijuana to the CID agent.  He also stated, in effect, that the CID agent kept the money, and said that he gave it to him, but that this was not true.  He further stated that this CID agent was later found guilty of fraud, but that the applicant’s military records were never corrected.  However, the applicant provided no evidence to support these statements.  

12.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.

13.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Paragraph 3-7 also 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to a general discharge. 

2.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

3.  The applicant’s trial by general court-martial was warranted by the gravity of the serious offenses with which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

4.  The applicant's entire record of service was considered; however, the fact that the applicant received NJP on three occasions, his record of AWOL, and his drug possession, drug dealing and fraudulent enlistment, which resulted in his trial by court-martial and subsequent confinement and bad conduct discharge, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  

5.  After a thorough review of the available records, the Board found no cause for clemency and an insufficient basis upon which to base an upgrade of the applicant’s bad conduct discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JM____  __TR ___  __RN ___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:  

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.




_______John Meixell_________
          CHAIRPERSON
































INDEX

CASE ID
AR20060010658
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070417
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19820408
DISCHARGE AUTHORITY
CHAPTER 11, AR 635-200  
DISCHARGE REASON
AS A RESULT OF TRIAL BY COURT-MARTIAL
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.6800.0000
2.

3.

4.

5.

6.