IN THE CASE OF:
BOARD DATE: 16 December 2008
DOCKET NUMBER: AR20080012469
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, in effect, that his court-martial was unjust.
3. The applicant provides no supporting documentation.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 5 January 1977, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty 11B (Infantryman).
3. On 27 May 1977, the applicant was assigned for duty as an automatic rifleman with the 2nd Battalion, 13th Infantry Regiment, in the Federal Republic of Germany.
4. On 9 June 1978, the applicant was promoted to specialist four, pay grade E-4.
5. Charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 134 (specification one), wrongful possession of heroin; (specification two) wrongful sale of heroin; and (specification three) wrongful transfer of heroin.
6. General Court-Martial Order Number 118, 21st Support Command, dated 21 December 1979, shows that the applicant pled guilty to the charge and all specifications before a General Court-Martial that convened on 7 August 1979. The military judge found the applicant guilty of specifications one and two of the charge, and dismissed, on motion by defense, specification three. He was sentenced to reduction to pay grade E-1, to be confined at hard labor for 1 year, to forfeit all pay and allowances, and to be discharged from the service with a bad conduct discharge. The sentence was adjudged 10 October 1979.
7. On 20 December 1979, the Staff Judge Advocate (SJA), in a written review for the convening authority, summarized the evidence and trial discussion. The 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. The SJA recommended that he should be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas, or elsewhere as directed by competent authority.
8. On 21 December 1979, the convening authority approved the sentence and, except for that part extending to a bad conduct discharge, ordered it executed.
9. On 19 February 1980, the United States Army Court of Military Review reviewed the entire record and held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact. Accordingly, it affirmed the finding of guilty and the sentence as approved.
10. General Court-Martial Order Number 289, Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 16 May 1980, noted the sentence to a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 1 year, and reduction to pay grade E-1, adjudged on 10 October 1979, as promulgated in General Court-Martial Order Number 118, Headquarters, 21st Support Group, dated 21 December 1979, had been affirmed. Article 71(c) having been complied with, the sentence was ordered executed.
11. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged from the Regular Army on 3 July 1980 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 11-2. His characterization of service is under other than honorable conditions.
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 applicants contention that he was unjustly tried and convicted.
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 applicants 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.
XXX
_________________________
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.
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