RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20070017013 


	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:


M

Chairperson

M

Member

M

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 an upgrade of his discharge.

2.  The applicant states that he was young at the time of his enlistment and that he made a mistake.  He has matured since then and has been a good citizen in his community. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 February 1982, in support of his 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 records show that he was born on 2 September 1957 and enlisted in the Regular Army at the age of 19 on 30 August 1977 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63Y (Track Vehicle Mechanic).  The highest rank and grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records further show that he was awarded the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history, which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 19 December 1978, for being absent without leave (AWOL) during the period from on or about 1 December 1978 through on or about 9 December 1978.  His punishment consisted of reduction to the rank/grade of private (PV2)/E-2 (suspended for 90 days), 5 days of extra duty, and forfeiture of $112.00 pay per month for one month.  On 22 December 1978, he appealed the punishment but did not submit matters for consideration by the next higher headquarters.  The DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) does not show the disposition of his appeal;

	b.  on 12 January 1979, for being found drunk while on duty, on or about 8 January 1979; and for wrongfully communicating a threat to a commissioned officer, on or about 8 January 1979.  His punishment consisted of reduction to the rank/grade of private (PVT)/E-1, forfeiture of $209.00 pay per month for two months, and 30 days in the Correctional Custody Facility.  He appealed his punishment on the same day.  On 12 February 1979, the next superior authority granted him partial relief by setting aside that portion pertaining to reduction in excess of reduction to PV2/E-2; and 

	c.  on 1 July 1980, for being disrespectful in language and in disposition toward a superior warrant officer, on or about 23 June 1980.  His punishment consisted of reduction to the rank and grade of private first class (PFC)/E-3.  He did not appeal.

5.  On 29 September 1980, at a General Court-Martial, the applicant pled:

	a.  Guilty to Charge I, specification 2, wrongfully selling 135 grams, more or less, of marijuana, on or about 23 April 1980; and Charge II, specification 1, violating a general regulation by possessing .266 grams of phencyclidine, on or about 24 April 1980; and specification 3, selling .266 grams of phencyclidine, on or about 24 April 1980; and

	b.  Not Guilty to Charge I, specification 1, wrongfully transferring 135 grams, more or less, of marijuana, on or about 23 April 1980; and Charge II, specification 2, violating a lawful general order by transferring .266 grams of phencyclidine, on or about 24 April 1980.

6.  The Court found the applicant guilty in accordance with his pleas of guilty and not guilty in accordance with his pleas of not guilty.

7.  The Court sentenced the applicant to reduction to the rank/grade of PVT/E-1, confinement at hard labor for 18 months, forfeiture of all pay and allowances, and a dishonorable discharge.  The sentence was adjudged on 29 September 1980.
8.  On 2 December 1980, the convening authority approved the applicant's sentence, and the record of trial was forwarded to The Judge Advocate General of the Army for review by the Army Court of Military Review. 

9.  On 10 June 1981, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, Fort Riley, Kansas, General Court-Martial Order Number 38, dated 13 November 1981, ordered the unexecuted portion of the applicant's approved sentence to confinement to be remitted. 

11.  Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, General Court-Martial Order Number 60, dated 16 December 1981, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the dishonorable discharge executed. 

12.  The applicant was discharged from the Army on 10 February 1982.  The DD Form 214 he was issued shows that he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 3 years, 3 months, and 17 days of creditable military service.  He also had 302 days of lost time, 19 days of which was due to AWOL, 5 days of which was due to confinement, and 283 days of which was due to confinement after normal expiration of term of service (ETS). 

13.  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.

14.  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.

15.  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 contends that his discharge should be upgraded.

2.  Records show that the applicant was 19 years of age at the time of his enlistment and 21 years of age at the time of his first Article 15 offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. Additionally, there is no evidence in the available records, and the applicant has not provided sufficient evidence, showing that his acts of indiscipline were the result of his age.

3.  Evidence of record shows that the applicant had a history of misconduct, including three Article 15s and a General Court-Martial.  His trial by a General 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.  After a 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 to upgrade the applicant's discharge to an honorable or a general 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.



							RML
      ______________________
                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)                                         AR20070017013



6


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