IN THE CASE OF:	  

	BOARD DATE:	  7 August 2008

	DOCKET NUMBER:  AR20080006439 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his bad conduct discharge be upgraded to honorable.

2.  The applicant states that he was wrongfully imprisoned and given a bad conduct discharge.  When the error was realized, he was released.

3.  The applicant provides copies of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) from the United States Air Force (USAF); Certificate of Release or Discharge from Active Duty (DD Form 214) from the United States Army (USA); extracts of USAF orders and records; USA travel orders; USA confinement discharge orders and extract of records; congressional correspondence; Department of Veterans Affairs (VA) Statement in Support of Claim (VA Form 21-4138); VA Certificate of Eligibility for Loan Guaranty Benefits (CA Form 26-8320); and extracts of his service medical records. 

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.  On 8 June 1965, the applicant enlisted in the USAF for 4 years.  He attained the rank of sergeant, pay grade E-4 and was released from active duty on 4 June 1969 and transferred to the Air Force Reserve.  He had completed 3 years, 
11 months, and 27 days of creditable active duty.  His characterization of service was honorable.

3.  On 10 September 1975, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Infantryman).

4.  On 8 January 1976, the applicant was assigned for duty as an infantryman with the 3rd Battalion, 5th Infantry Regiment, in the Canal Zone, Panama.

5.  Charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 80 (two specifications), wrongful attempt to sell cocaine. 

6.  General Court-Martial Order Number 11, 193rd Infantry Brigade (Canal Zone), dated 31 August 1978 shows that the applicant pled not guilty of the charge and specifications before a General Court-Martial that convened on 31 May 1978.  The court found the applicant guilty of both specifications and the charge.  He was sentenced to reduction to pay grade E-1; to be confined at hard labor for
5 years; to forfeit $250.00 pay per month for 60 months; and to be discharged from the service with a bad conduct discharge.  The sentence was adjudged 5 June 1978.

7.  The General Court-Martial further stated that the applicant had voluntarily absented himself on 2 June 1978, and was in a deserter status.  The application of the forfeitures was deferred pending return of the applicant to military control.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  Upon termination of the applicant’s absence, he was to be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas, or elsewhere as directed by competent authority.  

8.  On 28 August 1978, the Staff Judge Advocate, in a written review for the convening authority, summarized the evidence and trial discussion.  The Staff Judge Advocate (SJA) recommended approval of the sentence.   He further 
advised that the order directing execution of the sentence must be withheld pending the completion of the appellate review.  Upon termination of the applicant's absence without authority, the SJA recommended that he should be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas, or elsewhere as directed by competent authority. 

9.  On 31 August 1978, the convening authority approved the sentence.  The application of the forfeitures was deferred pending the applicant's return to military control. 

10.  General Court-Martial Order Number 629, Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 31 October 1979, noted the sentence to a bad conduct discharge, confinement at hard labor for 5 years, forfeiture of $250.00 pay per month for 60 months (deferred until the applicant was returned to military control), and reduction to pay grade E-1, adjudged on 
5 June 1978, as promulgated in General Court-Martial Order Number 11, Headquarters, 193rd Infantry Brigade (Canal Zone), Fort Amador, Canal Zone, dated 31 August 1978, had been affirmed.  Article 71(c) having been complied with, the sentence was ordered executed.  Upon the applicant’s return to military control, he was to be confined.

11.  On 27 April 1984, the applicant was returned to military control and placed into confinement at Fort Leavenworth, Kansas, on 17 May 1984.

12.  Order 145-04, United States Disciplinary Barracks, Fort Leavenworth Kansas, dated 31 July 1984, discharged the applicant from the Regular Army effective 3 August 1984.

13.  On 12 September 1984, the Army Clemency and Parole Board remitted that portion of the applicant's sentence extending to forfeitures and confinement.

14.  Order 175-03, United States Disciplinary Barracks, Fort Leavenworth Kansas, dated 17 September 1984, released the applicant from confinement.

15.  The applicant's DD Form 214, shows that he was discharged from the Regular Army on 3 August 1984 under the provisions of Army Regulation
635-200, chapter 3, due to court-martial.  He received a bad conduct characterization of service.




DISCUSSION AND CONCLUSIONS:

1.  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 final discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  There is no available evidence supporting the applicant’s contention that he was wrongfully imprisoned and given a bad conduct discharge. 

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the above, the applicant’s request should be denied.

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080006439



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