IN THE CASE OF:	  

		BOARD DATE:	        30 APRIL 2009

		DOCKET NUMBER:  AR20080019444 


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 (BCD) be upgraded to an Honorable Discharge (HD).

2.  The applicant states he was an excellent Soldier for many years and he had a good combat record.  He believes Vietnam was the source of his problems later in his career.  He came back from Vietnam with a drug problem and did not receive any help.  He states he now has serious medical problems and needs Department of Veterans Affairs (DVA) medical help.  He asks that the Board consider his combat record and his awards.

3.  The applicant provides three DD Forms 214 (Reports of Separation from Active Duty).

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 enlisted in the Regular Army for 3 years on 30 September 1968. Following Basic Combat Training at Fort Campbell, KY, he was transferred to Fort Gordon, GA, for training in a Signal Corps military occupational specialty (MOS).  He was awarded MOS 05C (Radio Teletype Operator) and he was sent to Vietnam.

3.  The applicant served in Vietnam from on or about 14 July 1969 to 2 January 1971.  He served in his MOS as a member of Headquarters and Headquarters Battery, 6th Battalion, 11th Artillery.  During his Vietnam service, he was awarded the Bronze Star Medal, Army Commendation Medal for meritorious service, Vietnam Service Medal, and Vietnam Campaign Medal.

4.  In July 1973, the applicant was reassigned from Fort Gordon to Germany.  While in Germany, he was tried by a General Court-Martial for:

   a.  on or about 4 September 1975, violating a general regulation by having in his possession a hypodermic needle;

   b.  on or about 4 September 1975, wrongfully possessing 18 grams, more or less, of marijuana;

   c.  on or about 4 September 1975, wrongfully possessing .11 grams, more or less, of heroin; and

	d.  on or about 29 August 1975, wrongfully transferring heroin.

5.  The applicant, in accordance with his plea of not guilty, was found not guilty of possessing a hypodermic needle.  Also in accordance with his plea, he was found not guilty of possessing 18 grams of marijuana.  However, he pleaded guilty to possessing and transferring heroin and, on 21 November 1975, was adjudged guilty of those charges.  He was consequently sentenced to total forfeiture of all pay and allowances, reduction from sergeant (SGT/E-5) to private (PVT/E-1), confinement at hard labor for 3 years, and a Dishonorable Discharge (DD).



6.  On 9 February 1976, so much of the sentence involving forfeitures in excess of $120.00 per month was suspended.  On 29 June 1976, the Army Clemency and Parole Board remitted confinement in excess of 2 1/2 years.  On 17 November 1977, by action of the Secretary of the Army, the unexecuted portion of the applicant’s sentence to confinement was remitted and the DD was mitigated to a BCD.  On 12 December 1977, that portion of the sentence pertaining to forfeitures was remitted and the applicant was restored to duty pending completion of appellate reviews.  Following completion of all appellate reviews, the applicant’s BCD was executed on 21 May 1979.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a Soldier will be given a BCD pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

8.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with The Military Justice Act of 1983 (Public Law 98-209) and 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 change a discharge due to matters which should have been raised in the appellate process, 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.

9.  Army Regulation 635-200 (Personnel Separations) 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.  

10.  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.



DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not upgrade discharges for the sole purpose of qualifying an applicant for DVA programs.

2.  The applicant was convicted of serious crimes – possessing and transferring heroin – while serving in Germany.  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.

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, or in this case, that clemency is warranted.  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)                                         AR20080019444



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ABCMR Record of Proceedings (cont)                                         AR20080019444



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