RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  9 August 2007
	DOCKET NUMBER:  AR20070002386 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Ms. Rea M. Nuppenau

Member

Mr. Dennis J. Phillips

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 discharge be upgraded.

2.  The applicant states, in effect, that he was discharged because of one pill.  The applicant further states that he was a model Soldier and that his punishment was unjust.  The applicant concludes that he took his punishment only to go home and take care of his mother.

3.  The applicant did not provide any additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 8 July 1980, the date of his discharge from the Regular Army.  The application submitted in this case is dated 2 February 2007.

2.  The applicant's record shows he enlisted in the Regular Army on 30 December 1976.  Records further show that he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman) and the highest rank he attained while serving on active duty was specialist four/pay grade E-4.

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

4. The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 December 1977 for stealing, and on 4 February 1979 for being drunk and disorderly in a public place.

5.  On 14 August 1979, the applicant pled guilty before a military judge at a special court-martial for on or about 9 April 1979, wrongfully and unlawfully having in his possession three tablets, more or less, of lysergic acid diethylamide (LSD); on or about 9 April 1979, wrongfully and unlawfully transferring LSD;  on or about 9 April 1979, wrongfully and unlawfully possessing two tablets, more or less, of methaqualone; and on or about 9 April 1979, wrongfully and unlawfully selling methaqualone.  The military judge sentenced the applicant to be discharged from the armed services with a bad conduct discharge, to be confined 
at hard labor for three months, to forfeit $279.00 pay per month for three months, and to be reduced to the grade of private/pay grade E-1.  The sentence was adjudged on 14 August 1979.

6.  Headquarters, 1st Armored Division, Army Post Office, New York, Special Court Martial Order Number 116, dated 12 October 1979, shows that the convening authority approved the sentence and forwarded the record of trial to The Judge Advocate General of the Army for review by a Court of Military Review.

7.  On 21 December 1979, the United States Army Court of Military Review affirmed the findings and sentence.

8.  Department of the Army, Headquarters, United States Army Disciplinary Barracks, Fort Leavenworth, Kansas, Special Court Martial Order Number 92, dated 30 April 1980, affirmed the sentence to bad conduct discharge, forfeiture of $150 pay per month for three months, confinement at hard labor for three months, and reduction to private/pay grade E1, and ordered the sentence be duly executed.

9.  The applicant's DD Form 214 shows that he was discharged on 8 July 1980 under the provisions of Army Regulation 635-200 (Personnel Separations) as a result of court-martial, with the separation code JJD and the reentry code of
RE-4.  This form further shows the applicant's character of service as bad conduct and that the applicant had 72 days of time lost during his military service.

10.  On 18 June 1985, the Army Discharge Review Board reviewed the applicant's military records and all other available evidence and denied the applicant's request for a change in the character and reason of discharge.

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

12.  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.
13.  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.

14.  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 that his discharge should be upgraded because of injustice.

2. On 14 August 1979, the applicant pled guilty before a military judge at a special court-martial to on or about 9 April 1979, wrongfully and unlawfully possessing and transferring LSD as well as wrongfully and unlawfully possessing and selling of two tablets of methaqualone.

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

__jcr___  __rmn___  __djp___  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.



							Jeffrey C. Redmann
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070002386
SUFFIX

RECON

DATE BOARDED
20070809
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19800708
DISCHARGE AUTHORITY
AR 635-200, Chap 11
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.