RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 May 2007
	DOCKET NUMBER:  AR20060015632 


	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 Schwartz

Acting Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Antonio Uribe

Member

Mr. Rodney E. Barber

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.

2.  The applicant states, in effect, that it has been over 30 years since he was discharged.  The applicant continues that he was a young kid and has since lived a very law abiding life, and would like to take advantage of the Veterans Benefits. 

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

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army on 
10 September 1973, at the age of 17.  He completed basic training and advanced individual training and was awarded the military occupational specialty (MOS) 36C Lineman).  The highest grade the applicant held was specialist/pay grade 
E-4. 

2.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that during his active duty tenure, he earned the National Defense Service Medal, the Armed Forces Expeditionary Medal and the Marksmanship Qualification Badge with Rifle Bar (M-16).

3.  The applicant's records do not show any significant acts of valor during his military service.

4.  The record reveals a disciplinary history which includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 1 May 1975 for wrongfully having in his possession (4) hand rolled cigarettes, containing marijuana on 2 April 1975.  His punishment consisted of reduction to private first class/pay grade E-3, forfeiture of $150.00 per month for 2 months (both suspended for 90 days), and restriction for 60 days.

5.  On 19 September 1975, the applicant pled guilty at a General Court-Martial to two specifications of wrongfully transferring heroin and two specifications of wrongfully possessing heroin.  The Court sentenced the applicant to forfeit all pay and allowances, reduction to E-1, confinement for 2 years, and a bad conduct discharge.


6.  On 10 October 1975, the convening authority approved only so much of the sentence extending to forfeiture of $240 per month for 12 months, reduction to 
E-1, confinement for 1 year, and a bad conduct discharge in excess of 6 months for a period of 12 months.

7.  On 26 July 1977, United States Army Court of Military Review affirmed the findings of guilty and sentence as approved by the convening authority.

8.  Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 1269, dated 23 December 1977, announced the applicant's sentence had been affirmed and the provisions of Article 71c, Uniform Code of Military Justice, had been complied with.  The Convening Authority ordered the sentence including the bad conduct discharge, executed.

9.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 11 of Army Regulation 645-200 (Separation of Enlisted Personnel) on 20 March 1978, with a bad conduct discharge as a result of court-martial.  His DD Form 214 also shows that during this period of enlistment he completed 4 years, 1 month, and 16 days of active military service with 145 days of lost time due to confinement.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect, at the time established policy and procedures for separating members with a dishonorable or bad conduct discharge.  The regulation provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  It further provided the appellate review must be completed and the affirmed sentence ordered duly executed.

11.  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.




12.  Army Regulation 635-200, paragraph 3-7a, 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.

13.  Army Regulation 635-200, paragraph 3-7b, 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 it has been 30 years since his separation, he was young at the time of his offenses, and he wants access to Veterans Benefits.

2.   Records show that the applicant was nearly 18 years of age at the time of his offenses.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's records show he was tried and convicted by a general court-martial for possession and transfer of heroin.  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 bad conduct discharge appropriately characterizes the misconduct for which the applicant was convicted.  

4.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

5.  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.



6.  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.

7.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for Veterans Benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ENA____  __AU___  _REB__ _  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.




_Eric N. Anderson__
           CHAIRPERSON




INDEX

CASE ID
AR200600015632
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
20 March 1978
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON
CH 11 GCM
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.