RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060013964 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Eddie L. Smoot

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 that his bad conduct discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states, in effect, that it has been over twenty years since his court-martial.  The applicant continues that his company commander was a drug user and that he was a good Soldier.  The applicant concludes that he only received one Article 15 and that his company was "too hard on him."

3.  The applicant provides three letters of support, a State of North Carolina Criminal Record Search, a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 23 September 1970, and a DD Form 214 (Report of Separation from Active Duty), effective 31 January 1975 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 January 1975, the date of his discharge.  The application submitted in this case is dated 20 September 2006.

2.  The applicant's records show that he enlisted in the Regular Army on 30 September 1968 for a period of two years.  He completed basic training and advanced individual training and was awarded the military occupational specialty (MOS) 36K10 (Wireman).  The applicant was separated on 23 September 1968 and transferred to the United States Army Reserve.  The applicant entered active duty again on 28 September 1968 and served until he was discharged on 31 January 1975.  The highest grade the applicant held was specialist/pay grade 
E-4.

3.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition

4.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to go to his prescribed place of duty on 20 August 1972.  



5.  On 10 May 1973, the applicant was convicted by a General Court-Martial of the following offenses: on or about 15 March 1973, selling a dangerous drug (amphetamine); and on or about 15 March 1973, possession of a dangerous drug (amphetamine).

6.  The applicant was sentenced to reduction to private/pay grade E-1, forfeiture of all pay and allowances, confinement at hard labor for one year, and to be separated from the service with a bad conduct discharge.  

7.  General Court-Martial Order Number 148, dated 13 February 1974, restored the applicant to duty pending appellate review.  On 13 February 1974, the Office of the Provost Marshal General Restoration Board recommended by a vote of 
2 to1 that the applicant be restored to duty.  On 20 February 1974, the Provost Marshal General disapproved the applicant's request for restoration.

8.  On 23 January 1975, General Court Martial Order Number 3, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, directed, Article 71c of the UCMJ having been complied with, that the Bad Conduct discharge, confinement at hard labor for one year, and reduction to the lowest enlisted grade portion of the sentence be duly executed.   The portion of the sentence with regard to forfeiture of all pay and allowances was modified by not enforcing it during the period of restoration to duty during the appellate review and the date the sentence ordered executed.

9.  The applicant's DD Form 214 shows that he was discharged as a result of court-martial on 31 January 1975, under the provisions of Army Regulation     635-200 (Personnel Separations), with the separation code JJD and the Reentry code 4.  

10.  This form further shows the applicant's character of service as under other than honorable conditions and that he was issued a DD Form 259A (Bad Conduct Discharge Certificate).  Army Regulation 635-5-1 shows the separation code JJD indicates separation of enlisted personnel as a result of court-martial.  

11.  This DD Form 214 also shows the applicant had 278 days of time lost during his military service.

12.  The applicant provided three letters of support from friends and neighbors who essentially state that the applicant is an asset to the community, a well-known person, and a dedicated family man.

13.  Army Regulation 635-200 provided for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial imposing a bad conduct discharge.  

14.  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 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.

15.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

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 (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded because his sentence was too harsh.

2.  The applicant's records clearly show he was tried and convicted by a General Court-Martial for possession and sale of amphetamine.

3.  Trial by court-martial was warranted by the gravity of the offenses 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.  

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LDS____  __JLP___  _ELS___  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.





__Linda D. Simmons__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.