IN THE CASE OF:	 

		BOARD DATE:	       6 January 2009

		DOCKET NUMBER:  AR20080017318 


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 1986 bad conduct discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that it has been 21 years since his discharge.  He makes no excuses for his actions and takes responsibility for them.  However, he states that there were extenuating circumstances which occurred and that prior to being assigned to the 54th Engineer Battalion his duty and career were "exceptional and well-above average and indeed, honorable."

3.  The applicant states that he was recognized with awards, completed numerous training, received multiple commendations, and received "above-average to outstanding" development evaluations.  He states that upon returning to Germany for his second tour of duty with the 54th Engineer Battalion his platoon sergeant, in effect, had it out for him because of his (the applicant's) prior service with the elite 101st Airborne Division and numerous decorations.  As a result of this conflict, he states he was going to be reassigned to another organization but missed a formation after he overslept following his going away party the previous night.  He states he "barely failed" a breathalyzer test "technically making" him drunk on duty, as were other members of his squad.  He notes that although members of his chain of command recommended a "suspended loss of rank" his battalion commander denied the recommendation without any discussion.  He states he was then not permitted to move to the new unit and was subsequently humiliated, ashamed, and disgraced.  As a result, he 
no longer cared to have a military career and was in a place he no longer wished to be.  He states he gave up and turned to alcohol while also "dabbling with marijuana" to escape his emotional pain.

4.  The applicant states that ultimately a fellow platoon member went into his own room and took a small amount of marijuana without telling him (the applicant).  When that individual was caught he claimed he (the applicant) had given it to him.  The applicant states because the other Soldier had a wife and children he took responsibility, even though it was not his.

5.  The applicant states that he was told his discharge would be automatically upgraded after six months and that he accepted the bad conduct discharge, not knowing the effect it would have on his future.  He states since his discharge he has turned his life around, is committed to helping Soldiers, and would like to restore his dignity and honor in both his eyes and those of his family.

6.  He asks that the Board upgrade his bad conduct discharge to a general discharge in light of his numerous years of honorable service prior to the incident which served as the basis for his discharge. 

7.  The applicant provides copies of his Army Achievement Medal orders and citations; a copy of orders awarding him the Army Good Conduct Medal; and copies of various other documents, including Air Assault training, weapon qualification score cards, letters of commendation and achievement, and promotion certificates, among others.  Some, but not all of the documents, were contained in the applicant's personnel records available to the Board.

8.  The applicant also provides a statement from the CEO (Chief Executive Officer) and Vice President of "Soldier On" (a Massachusetts based non-profit organization working with the Department of Veterans Affairs and other agencies to provide shelter and support to veterans), and a statement from a friend attesting to the applicant's work with the community and the problems he has faced.

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 on 30 June 1979.  He successfully completed training in military occupational specialty (MOS) 12B (combat engineer).  In October 1980 he was assigned to an engineer battalion at Fort Devens, Massachusetts.  In spite of having been trained as a combat engineer, his DA Form 2-1 (Personnel Qualification Record) shows he was assigned duties as a vehicle driver.

3.  In December 1981 he was reassigned to the 54th Engineer Battalion in Germany.  By September 1982 he had been promoted to pay grade E-4.  On 
22 February 1983 he reenlisted for a period of 4 years.  His reenlistment option included assignment to Fort Campbell, Kentucky.  He arrived at Fort Campbell in June 1983.

4.  The applicant was issued an administrative letter of reprimand in August 1983 after testing positive for marijuana during urinalysis testing at Fort Campbell.  In October 1984 he was enrolled in Track I of the Army's Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) following referral to the program by his commander.

5.  In November 1984 the applicant was promoted to pay grade E-5.  While at Fort Campbell he received a performance evaluation report for the reporting period ending in February 1985.  The applicant's rater indicated he could become an outstanding leader in the future while his senior rater noted he was a fine young noncommissioned officer.  The applicant's evaluation score was 117 out of a maximum score of 125.

6.  In March 1985 the applicant was reassigned back to the 54th Engineer Battalion in Germany.  In June 1985 the applicant was again command referred to the Army's ADAPCP and entered into Track I of the program.  In August 1985 he was transitioned to Track II after failing to make progress in the program.  

7.  In September 1985 the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place a duty (morning physical training formation) and being drunk.  


His punishment included reduction to pay grade E-4.  In November 1985 he was 
punished again under Article 15 of the UCMJ for being drunk while on duty.  A
19 November 1985 ADAPCP Client Progress Report form also noted the applicant was not making progress in the ADAPCP.

8.  On 26 February 1986 the applicant was tried and found guilty pursuant to his pleas by a special court-martial, of possession, use, and distribution of "some amount of marijuana" at Wildflecken, Germany on 18 December 1985.  Headquarters, V Corps Special Court-Martial Order Number 14, dated 15 April 1986 shows he was sentenced to a bad conduct discharge, confinement for 
4 months, and forfeiture of $426.00 pay per month for 4 months.  The convening authority approved the sentence and, except for the part of the sentence extending to a bad conduct discharge, ordered the sentence executed.  The applicant was subsequently confined at the Personnel Control Facility at Fort Knox, Kentucky between 26 February 1986 and 9 May 1986 at which time he was placed on involuntary excess leave pending disposition of appellate review.

9.  On 30 May 1986 the United States Army Court of Military Review considered the entire record and held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the adjudged sentence was affirmed.

10.  On 25 September 1986 Headquarters, United States Army Armor Center, Fort Knox published Special Court-Martial Order Number 194.  It indicated that the sentence to a bad conduct discharge, confinement for 4 months, and forfeiture of $426.00 pay per month for 4 months, as promulgated in Special Court Martial Orders Number 14 was finally affirmed.  It further stated that Article 71(c) having been complied with, the bad conduct discharge will be executed and that that portion of the sentence pertaining to confinement had been served.

11.  Accordingly, on 28 October 1986, the applicant was discharged from the Army with a bad conduct discharge, in the rank and pay grade of Private (PV1)/E-1, pursuant to the sentence of a special court-martial.  He completed
7 years, 1 month, and 15 days of creditable active service.

12.  The applicant's file confirms he was awarded three awards of the Army Achievement Medal between May and September 1983, an Air Assault Badge in July 1983, and an Army Good Conduct Medal in June 1983.  Documents provided by the applicant, but not contained in records available to the Board, indicate he received a letter of commendation for his outstanding performance on a 6-mile battalion run in September 1981 and recognition for his precision marching and drill as a member of the 39th Engineer Battalion Drill and Ceremonies Team at Fort Devens.  In October 1982 he was presented a certificate of achievement for contributions to the 54th Engineer Battalion's efforts between January and August 1982 and in December 1982 he received a letter of appreciation upon the departure of his unit commander from the 54th Engineer Battalion.  In April 1984 he received a letter of commendation for his selection as the Soldier of Month for the 326th Engineer Battalion at Fort Campbell.

13.  The letter submitted by the CEO and President of "Soldier On" is dated 
18 September 2008 and indicated the applicant has been a resident of Soldier 
On since 4 September 2007 and completed a 21-day substance abuse program 
on 27 September 2007.  They noted random drug and alcohol screening, occurring during the previous 12 month period, had all been negative and that he was currently working full time as a press operator.  

14.  The undated statement from the applicant's friend indicated the author had known the applicant for many years and noted the applicant had gone through some really tough times but continued to make every effort to maintain his forward progress.  He noted the applicant's life became problematic in his last year of service and believed the discharge is not fair considering the applicant served with honor and integrity for 6 years.

15.  There is no record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the 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.  The appellate review was required to have been completed and the affirmed sentence ordered duly executed.

17.  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.

18.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. 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.  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 argues that his honorable service, as evidenced by his awards, training, and recognition by various military members, should be taken into consideration and that there were mitigating circumstances which led to the court-martial.  Records available to the Board, however, indicate the applicant was reprimanded and punished on two separate occasions under Article 15 of the UMCJ for drug and alcohol-related incidents as early as 1983, long before he returned to Germany and encountered the Platoon Sergeant who, the applicant suggests, derailed his military career.  The evidence also indicates the applicant's chain of command attempted to assist the applicant with his alcohol problem by enrolling him in the ADAPCP.  In spite of the applicant's accomplishments, the evidence also indicates he violated all the trust and confidence that had been placed on him by indulging in alcohol and illegal drugs.

3.  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.  Therefore, there is no legal basis for granting the applicant's request for relief.

4.  The applicant’s reported good post-service conduct and achievements are noted.  However, they are not sufficient to mitigate the offenses committed during his military service.

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 the applicant's 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.



      _________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)                                         AR20080017318



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ABCMR Record of Proceedings (cont)                                         AR20080017318



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