RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20070016750 


	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, in effect, that his discharge be upgraded.

2.  The applicant states, in effect, that he is applying for an upgrade through the Army Board for Correction of Military Records (ABCMR) because the 15-year statute of limitations for applying to the Army Discharge Review Board (ADRB) has expired.

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

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 record shows he enlisted in the Army at the age of 19, entered active duty on 3 August 1970, and was discharged on 19 May 1976.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 64C (Heavy Truck Driver).  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

3.  The applicant's record shows that he served in the Republic of Vietnam during the period 10 August 1971 through 6 April 1972.

4.  Item 9 (Awards, Decorations, and Campaigns) of the applicant's DA Form 
2-1 (Personnel Qualification Record) shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Good Conduct Medal, and an Overseas Service Bar.  The applicant's records do not show any significant acts of valor during his military service.

5.  The applicant’s record reveals 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) on three occasions for the following offenses:  for disobeying a lawful regulation twice, for disobeying a lawful order by failing to be at his place of duty at the appropriate time, and for incapacitation for duty as a result of wrongful use of a non-prescribed drug.

6.  Headquarters, United States Army Quartermaster Center and Fort Lee, Fort Lee, Virginia Memorandum, dated 14 March 1974, Subject: Failure to Comply with Current Regulations, shows the applicant was command-referred to the Alcohol and Drug Abuse Prevention and Control Program to determine whether he was using drugs.  The memorandum also shows that on 12 February 1974, the applicant was found to have a positive urine sample for amphetamines.  The memorandum continues that he was subsequently sent to the drug rehabilitation facility and refused treatment of any kind.  The memorandum concludes with a recommendation that the applicant be discharged from the Army at the earliest possible date for failing to comply with current regulations and the UCMJ.

7.  Headquarters, United States Army Quartermaster Center and Fort Lee, Fort Lee, Virginia General Court-Martial Order Number 7, dated 17 July 1974, shows the applicant was found guilty of knowingly, unlawfully, and intentionally possessing with intent to distribute 77 tablet doses of Lysergic Acid Diethylamide (LSD), a controlled substance.  The order also shows the applicant was sentenced to separation from the service with a bad conduct discharge, to forfeit all pay and allowances, to be confined at hard labor for ten months, and to be reduced to the lowest enlisted grade of private E-1.  The sentence was adjudged on 16 April 1974 and the applicant was confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas pending completion of appellate review.

8.  On 30 March 1976, the appellate review having been completed in accordance with Article 71(c), UCMJ, the general court-martial convening authority took final action by approving the sentence as adjudged.  He ordered the remainder of the sentence to be executed.

9.  Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas Special Orders Number 99, dated 19 May 1976, shows the applicant was discharged on 19 May 1976, with service characterized as under other than honorable conditions, and issued a DD Form 259A (Bad Conduct Discharge Certificate).


10.  The record shows that on 19 May 1976, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) issued to him at the time, confirms the applicant completed a total of 4 years, 5 months, and 14 days of creditable active military service for that period of enlistment, had an under other than honorable conditions character of service, and was issued a DD Form 259A.

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 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant's record reveals a pattern of indiscipline including three Article 15s and culminating in his trial by General Court-Martial, which was warranted by the gravity of the offenses charged.  His 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.

3.  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.

4.  After review of the applicant’s entire record of service, it was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offenses for which he was convicted and his lost time, it is also clear that his service was not satisfactory, thus did not meet the criterion for discharge under honorable conditions.  Therefore, there is no basis for a grant of clemency in the form of an upgraded discharge.

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




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.


ABCMR Record of Proceedings (cont)                                         AR20070016750



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508