RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 MAY 2008
	DOCKET NUMBER:  AR20070015348 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 his Bad Conduct Discharge (BCD) be upgraded.

2.  The applicant states, in effect, that there is no error or injustice in his BCD.  He wants it upgraded because he needs medical help.

3.  The applicant does not provide any additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military personnel record shows he enlisted in the Regular Army on 30 August 1973.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11C (indirect fire infantryman).

3.  The applicant was promoted to pay grade E-3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 17 April 1974 for wrongfully possessing a controlled substance (marihuana), on 26 July 1974 for willfully disobeying a lawful command, and on 27 March 1975 for being disrespectful in language towards a superior noncommissioned officer.

4.  On 25 August 1975, the applicant was confined by civilian authorities.

5.  On 16 January 1976, the applicant was tried before a general court-martial.

	a.  The applicant pleaded guilty to and was found guilty of: wrongful appropriation of a motorcycle of a value of about $800.00, the property of another Soldier; violation of a general regulation by the wrongful possession of a controlled substance (Lysergic Acid Diethylamide [LSD]); violation of a general regulation by wrongful possession of a controlled substance (phencyclidine); violation of a general regulation by wrongful selling of a controlled substance (phencyclidine); and wrongful selling of a controlled substance (LSD).

	b.  The applicant pleaded not guilty to and was found not guilty of resisting lawful apprehension.

	c.  The applicant's sentence consisted of forfeiture of all pay and allowances, reduction to pay grade E-1, confinement for 3 years, and a Dishonorable Discharge.  The sentence was adjudged on 16 January 1976.

6.  On 3 March 1976, the convening authority approved the sentence.

7.  On 29 November 1977, after the Court of Military Appeals remanded the applicant’s case on 27 October 1977 to it for further review and a reassessment of the sentence because the Superior Court of Military Review had directed dismissal of all four drug related specifications, The United States Army Court of Military Review affirmed only so much of the sentence as provided for a BCD, confinement at hard labor for one year, total forfeitures, and reduction to the grade of Private (E-1).

8.  On 17 October 1978, the applicant's sentence, as modified by the United States Army Court of Military Review, was ordered executed.

9.  On 12 February 1979, the applicant was discharged under other than honorable conditions as a result of a court-martial.  He had completed 2 years, 9 months, and 16 days of active service.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not stated that his BCD was an error or injustice, and no error or injustice was found in his trial and conviction.

2.  The evidence shows that the applicant’s trial by general court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction, appeal, and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

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

4.  The applicant's statement that he needs medical care has been taken into consideration.  However, the ABCMR does not upgrade a properly issued discharge solely for the purpose of establishing entitlement to a benefit.

5.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.  

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X______  _X______  _X____  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.





      __________X____________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070015348


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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