IN THE CASE OF:	  

		BOARD DATE:	       7 MAY 2009

		DOCKET NUMBER:  AR20090000264 


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 discharge characterized as under other than honorable conditions be upgraded.

2.  The applicant states, in effect, that he was young and impetuous.  He maintains that at the time of his trial, he and an associate devised a plan to make some money by making up a package containing one percent drugs and various other useless chemicals.  However, the associate chose to testify against him and he was convicted, reduced in rank, and sentenced to 10 months.  The applicant adds that he was young, scared, and had never been incarcerated and therefore, while the charges were being rescinded, he panicked and ran.  He states that his actions caused him to serve the 10 months instead of being reinstated on active duty.

3.  The applicant provides a copy of his DD Form 214 (Report 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’s record shows he enlisted in the Regular Army and entered active duty on 25 August 1972.  He was 18 years of age at the time of enlistment. 

3.  General Court-Martial Order Number 148, dated 21 November 1974, shows the applicant was convicted by a general court-martial, on 12 September 1974, of possession and sale of heroin.  His punishment consisted of confinement at hard labor for 10 months, a forfeiture of $150.00 per month for 10 months, reduction to the rank of private (E-1), and a Bad Conduct Discharge.  The sentence was adjudged on 12 September 1974.

4.  A DA Form 4187 (Personnel Action) shows that, on 20 September 1974, the applicant was reported absent without leave (AWOL) from the Post Stockade and subsequently dropped from the rolls on 19 October 1974.  On 9 December 1974, the applicant was returned to military authorities.

5.  On 16 June 1975, the applicant underwent a physical examination and was medically cleared for separation.

6.  The applicant's DD Form 214 shows that he was discharged under conditions other than honorable on 17 June 1975.  The authority and reason was listed as paragraph 11-2 Army Regulation 635-200.  The type of certificate issued was listed as a DD Form 259A (Bad Conduct).  The applicant had completed 2 years and 18 days of total active service and he had a total of 275 days of lost time.

7.  Army Regulation 635-200 (Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  Paragraph 11-2 provides that a Bad Conduct Discharge will be given pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

8.  Court-martial convictions stand as adjudged or as 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 ABCMR 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.  The applicant contends that his discharge should be upgraded because of his age and maturity level at the time he entered the military. 

2.  The records show the applicant was about 20 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  Therefore, his contention is not sufficient to establish a basis for upgrading his discharge 

3.  The applicant has failed to provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant clemency.  

4.  The applicant's record of service included a conviction by a general court-martial and over 275 days of lost time.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis to upgrade the applicant's discharge.

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)                                         AR20090000264



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000264



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1