IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009

		DOCKET NUMBER:  AR20090003137


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.

2.  The applicant states, in effect, that there is no error in his military record.  He indicates he’s had a BCD for a very long time and would just like to have it upgraded at this time.  He also requests a copy of his 1976 class photo be sent to him.  

3.  The applicant provides no additional documentary evidence 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 military records show he enlisted in the Regular Army (RA) and entered active duty on 3 February 1976.  He was trained in, awarded, and served in military occupational specialty (MOS) 36C (Wire System Installation Operator).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) confirms, in Item 18 (Appointments & Reductions), that he was promoted to specialist four (SP4)/E-4 on 6 December 1977, and that this was the highest rank/grade he attained while serving on active duty.  It also shows he was reduced to private first class (PFC)/E-3 on 11 October 1978 and to private (PV1)/E-1 on 2 June 1980.

4.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  It does contain an extensive disciplinary history that shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five separate occasions for the offenses indicated:  29 April 1977, for disobeying a lawful order; 2 August 1977, for failing to go at the time prescribed to his appointed place of duty; 6 October 1977, for failing to go at the time prescribed to his appointed place of duty; 7 July 1978, for failing to go at the time prescribed to his appointed place of duty; and 11 October 1978, for disobeying a lawful order. 

5.  On 6 March 1980, contrary to his pleas, a general court-martial (GCM) found the applicant guilty of two charges (3 specifications each), of violating Article 134 of the UCMJ.  The original charge consisted of the following three specifications: wrongfully possessing heroin on or about 13 April 1979; wrongfully selling heroin on or about 13 April 1979; and wrongfully transferring heroin on or about 13 April 1979.  The additional charge consisted of the following three specifications:  wrongfully possessing heroin on or about 31 October 1979; wrongfully selling heroin on or about 31 October 1979; and wrongfully transferring heroin on or about 31 October 1979.  The resultant sentence imposed by the military judge included a BCD, confinement at hard labor for 1 year and 9 months, forfeiture of all pay and allowances, and reduction to PV1.  The GCM convening authority approved the sentence in Headquarters, VII Corps GCM Order Number 61, dated 2 June 1980.  

6.  On 29 May 1981, GCM Order Number 360, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, directed that, Article 71c of the UCMJ having been complied with, the BCD portion of the sentence be duly executed.  On 18 June 1981, the applicant was discharged accordingly.


7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty)  issued to the applicant on the date of his discharge shows that he was discharged under the provisions of paragraph 11-2, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) after completing a total of 3 years, 9 months, and 17 days of creditable active military service and accruing 577 days of time lost due to confinement.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 11-2 of this regulation, in effect at the time, provided that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

9.  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 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’s contention that his BCD should be upgraded because he has had it for a long time has been carefully considered.  However, this factor is not sufficiently mitigating to warrant the requested relief. 

2.  The applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulation and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  Given the applicant’s undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted 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.

5.  The applicant is advised that the yearbook photograph he is requesting is not a part of his military record and it is not an item maintained in his Official Military Personnel File (OMPF).  As a result, no effective relief can be granted on this matter.  

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)                                         AR20090003137



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ABCMR Record of Proceedings (cont)                                         AR20090003137



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