IN THE CASE OF:	  

		BOARD DATE:	  4 June 2009

		DOCKET NUMBER:  AR20090001189 


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, an upgrade of his bad conduct discharge (BCD).  

2.  The applicant states, in effect, that he has paid his debt for using bad judgment 29 years ago.  He states that he now suffers from medical problems that are service connected and needs assistance.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) in support of his application. 

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 in the Regular Army and entered active duty, in the rank of private first class (PFC), on 15 March 1976.  It also shows he was trained in and awarded military occupational specialty (MOS) 51C (Structures Specialist).  

3.  The applicant's DA Form 201 (Personnel Qualification Record) shows he served in Germany from 25 January 1978 through 9 March 1979, and earned no individual awards or decorations during his active duty tenure.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  On 18 January 1979, a general court-martial (GCM) found the applicant guilty, pursuant to his plea, of two specifications of violating Article 92 of the Uniform Code of Military Justice (UCMJ) by possessing a dangerous nonnarcotic drug, phencyclidine (PCP), on or about 17 November 1978; and by selling a dangerous nonnarcotic drug, phencyclidine (PCP), on or about 17 November 1978.  The resulting sentence from the military judge was confinement at hard labor for 
12 months and a BCD.  

5.  On 12 March 1979, in Headquarters, United States Army Administration Center and Fort Benjamin Harrison, Fort Benjamin Harrison, Indiana, GCM Order Number 1, the GCM convening authority approved the applicant's sentence, but suspended the execution of that portion of the sentence adjudging confinement at hard labor in excess of 90 days until 12 September 1979, at which time, unless the sentence was sooner vacated, the suspended portion of the sentence would be remitted without further action.  

6.  On 16 May 1980, Headquarters, United States Armor Center and Fort Knox, Fort Knox, Kentucky, GCM Order Number 33.1 confirmed the applicant's sentence had been affirmed pursuant to Article 66 of the UCMJ and directed, Article 71(c) of the UCMJ having been complied with, that the BCD portion of the applicant’s sentence be executed.  On 28 July 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 4 years, 2 months, and 20 days of creditable active military service and had accrued 54 days of time lost due to confinement.  

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated, in pertinent part, that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.
8.  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.  The applicant's contentions that his discharge should be upgraded in order to him to receive medical assistance for service-connected medical conditions and because he has paid for the mistake in judgment he made 29 years ago were carefully considered.  However, while his current medical condition is unfortunate, this factor or the passage of time is not sufficiently mitigating to support clemency in this case.  

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ, is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

3.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge, and his record reveals no acts of valor, significant achievement, or service warranting special recognition.  Given the gravity of the offenses that resulted in his GCM conviction and BCD, and based on his undistinguished record of service, there is an insufficient evidentiary basis to support clemency in this case. 

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.




      _______ _   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)                                         AR20090001189



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ABCMR Record of Proceedings (cont)                                         AR20090001189



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