IN THE CASE OF:	  

		BOARD DATE:	       10 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018411 


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 (BCD) be upgraded to a general discharge.

2.  The applicant states, in effect, that he desires to have his discharge upgraded because he is seeking medical treatment at the Department of Veterans Affairs (VA). 

3.  The applicant provides a copy of his General Court-Martial Order.

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 was inducted in Los Angeles, California with a moral waiver on 2 August 1966 and was transferred to Fort Bliss, Texas to undergo his basic training.

3.  On 24 September 1966, nonjudicial punishment (NJP) was imposed against the applicant for his failure to prepare for guard duty.  His punishment consisted of an oral admonition, extra duty, and restriction.

4.  He completed his basic training and was transferred to Fort Ord, California on 9 October 1966, to undergo his advanced individual training (AIT) as a supply clerk.  

5.  On 17 November 1966, NJP was imposed against the applicant for being absent without leave (AWOL) from 13 November to 15 November 1966.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

6.  He completed his AIT and was transferred to Okinawa, Japan on 5 January 1967.  He was advanced to the pay grade of E-3 on 10 April 1967.

7.  On 1 August 1967, NJP was imposed against the applicant for behaving in a disorderly manner at Fort Buckner, Okinawa.  His punishment consisted of extra duty and restriction.

8.  On 19 October 1967, NJP was imposed against the applicant for failure to obey a lawful order from a superior noncommissioned officer and for failure to go to his appointed place of duty.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty, and restriction.

9.  On 17 July 1968, he was convicted by a general court-martial of two specifications of the wrongful possession of marijuana and one specification of the wrongful sale of marijuana.  He was sentenced to confinement at hard labor for 5 years, reduction to the pay grade of E-1, forfeiture of all pay and allowances, and a BCD.

10.  The applicant was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas to serve his confinement.  He was released on 12 June 1970 and placed on excess leave status pending the completion of appellate review.

11.  On 4 September 1970, the United States Army Court of Military Review affirmed only so much of the sentence as provided for confinement at hard labor for 2 years, reduction to the pay grade of E-1, forfeiture of all pay and allowances, and a BCD.
12.  On 31 March 1971, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 2 years, 9 months, and 4 days of total active service and had approximately 695 days of lost time due to AWOL and confinement.  

13.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

14.  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.  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 discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense.  

4.  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 this requirement.  



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.
ABCMR Record of Proceedings (cont)                                         AR20080018411



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ABCMR Record of Proceedings (cont)                                         AR20080018411



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