IN THE CASE OF:	 

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20080018829 


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, in effect, that his bad conduct discharge be upgraded.

2.  The applicant states, in effect, in a self-authored addendum to his DD Form 149 (Application for Correction of Military Record) that near the end of his tour of duty in Germany he fell in with some Soldiers who were into smoking dope and partying as much as they could.  He started using drugs and alcohol to impress his new friends and gain acceptance.  He was only 20 years of age and very impressionable.

3.  The applicant adds that the guys would pool their money to make hashish runs and to get a good price.  He had access to his vehicle and he was chosen to go pick up the stash on several occasions.  It was on his last run before returning to the United States that he was stopped with the drugs by the German police.  The police turned him over to the Army and he was subsequently court-martialed and given a jail term as well as a bad conduct discharge.  The attorney he hired at the time assured him he would still be honorably discharged and he could still return home as scheduled that month.  He has carried this with him for many years.  He is now 56 years of age.

4.  The applicant adds he had served nearly his complete tour of duty when this event happened.  He was very young as well.  There was no treatment and the mindset of the time in 1972 was much different than today.

5.  The applicant concludes by asking that the Board review this situation and allow his discharge to be upgraded.  Until this one mistake he made, he was an exceptional Soldier and he feels he should be given some consideration for the service.

6.  In support of his request, the applicant submits a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a three-page addendum to his DD Form 149.

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 that he enlisted for 3 years in the Regular Army on 17 October 1969.  He completed his basic combat and advanced individual training and was awarded the military occupational specialty 73C (Pay Disbursement Specialist).

3.  The applicant was assigned to the 106th Finance Section in Germany and served there from 4 October 1970 until 13 October 1972.

4.  The applicant's records document the highest rank and pay grade he held on active duty was specialist five/E-5.  The record shows he achieved this rank and pay grade on 5 June 1971.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

5.  On 14 January 1972, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for a uniform violation and disorderly conduct on 28 December 1971.  The imposed punishment was a forfeiture of $30.00 pay per month for 2 months.  The applicant appealed the punishment and on 1 February 1972 he was advised the appeal was denied by the Commander, U.S. Forces Support District-Baden-Wuerttemberg.

6.  On 9 June 1972, the applicant was tried and found guilty by a special court-martial of wrongfully having in his possession three kilograms, more or less, of marijuana in the form of hashish on 30 March 1972.  The applicant was sentenced to be reduced to private/E-1, to forfeit $192.00 pay per month for 5 months, to be confined at hard labor for 5 months, and to be discharged from the service with a bad conduct discharge.  The sentence was approved on 5 September 1972 and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  The applicant was ordered into confinement.

7.  At the time of his conviction, the applicant was over 19 years and 8 months of age.  The applicant's date of birth is 26 September 1952.

8.  On 26 February 1973, the U.S. Army Court of Military Review having found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined on the basis of the entire record that the findings of guilty and only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for five months, forfeiture of $165.00 pay per month for five months, and reduction to private/E-1 should be approved, affirmed the sentence as thus modified.

9.  On 20 July 1973, Special Court-Martial Order Number 73 was published by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, and announced that Article 71(c) having been complied with, the sentence would be duly executed.  This order further announced that that portion of the sentence pertaining to confinement at hard labor had been served.

10.  On 15 August 1973, the applicant was discharged from the Army with a bad conduct discharge with his service characterized as under conditions other than honorable in the rank and pay grade of private/E-1 pursuant to the sentence of a special court-martial.  The applicant's DD Form 214 shows he had completed 3 years, 5 months, and 20 days of net active Federal service with 128 days of time lost prior to his normal expiration of term of service (ETS) [from 10 June 1973 to 4 September 1972] and 3 days lost subsequent to his normal ETS [from 17 October 1972 to 19 October 1972].

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 18 February 1975.  On 5 June 1975 he was notified that after careful consideration of his military records and all other available evidence, the ADRB had determined that he had been properly discharged.  The applicant's request for an upgrade of his discharge was denied.

12.  Army Regulation 635-200 (Enlisted Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence had been duly ordered executed.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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 separation specifically allows such characterization.

15.  Title 10, U.S. Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.  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.

2.  The applicant alleges he fell in with some Soldiers who were into smoking dope and partying as much as they could and he started using drugs and alcohol to impress them and to gain their acceptance.  The evidence of record shows the applicant received a special court-martial for having three kilograms, more or less, of marijuana in the hashish form in his possession.  There is also no evidence that the applicant was any less mature than other individuals of the same age who successfully served the full term of their enlistment without incident or such a drastic event such as that which resulted in his apprehension and court-martial.

3.  The applicant was convicted and he was sentenced to a bad conduct discharge, confinement at hard labor for 5 months, forfeiture of $165.00 pay per month for 5 months, and a reduction to private/E-1.  The evidence shows his conviction and discharge were effected in accordance with applicable law and regulation.

4.  The applicant’s sentence, which was adjudged on 9 June 1972, was reviewed by the Army Court of Military Review.  Having been finally affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered executed and the applicant was so discharged.

5.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of his bad conduct discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080018829



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ABCMR Record of Proceedings (cont)                                         AR20080018829



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