IN THE CASE OF:	  

		BOARD DATE:	  	        16 July 2009

		DOCKET NUMBER:  AR20090003887 


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 his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant states he will be 76 years old and would like to remove the "black mark" of a bad conduct discharge from his record after all these years.  He states he would like to be eligible for veterans' benefits that require an honorable discharge.

3.  The applicant provides, in support of his application, a brief history of the company from which he retired, a letter from the President of the United States, a letter from the Chief Executive Officer (CEO) of the company from which he retired, and a copy of his DD Form 214 (Report of Separation from Active Duty) with an effective date of separation of 15 June 1955.

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 personnel records show he was inducted into the Army on 26 May 1953.

3.  On 28 April 1955, the applicant pled guilty and was found guilty at a general court-martial of wrongful use of a habit-forming narcotic drug, to wit:  opium derivative, on or about 17 March 1955, and violation of a lawful general regulation on 17 March 1955 by having in his possession two syringes and five hypodermic needles, instruments or devices which may be used to administer or dispense habit-forming drugs or nervous system stimulants.  His sentence consisted of forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a bad conduct discharge.

4.  On 5 May 1955, the record of trial was referred to the Staff Judge Advocate (SJA) for review.  The SJA stated the finding and sentence were correct in law and fact, the sentence was appropriate for the offenses of which the applicant was found guilty, and recommended the sentence be approved.

5.  On 9 May 1955, the convening authority approved the sentence.

6.  On 24 May 1955, the Board of Review, United States Army, affirmed the findings of guilty and the sentence.

7.  Headquarters, Central Command, General Court-Martial Order Number 258, dated 15 June 1955, remitted so much of the sentence to confinement at hard labor in excess of 9 months and ordered the bad conduct discharge executed.

8.  On 15 June 1955, the applicant was discharged as a result of court-martial.  His DD Form 214 shows he was authorized the National Defense Service Medal, the United Nations Service Medal, and the Korean Service Medal.

9.  In a letter, dated 26 May 1975, the President of the United States thanked the applicant for his support concerning the SS Mayaguez.

10.  In a letter, dated 20 July 1982, the CEO from the company the applicant was working for assured him his job was waiting for him upon his recovery.

11.  Army Regulation 615-364 (Discharge, Dishonorable and Bad Conduct), in effect at the time, stated that when authorized, an enlisted person would be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.
12.  Army Regulation 615-360 (Enlisted Personnel, Discharge, General Provisions), in effect at the time, provided that an honorable discharge certificate would be furnished when the individual had character ratings of at least "very good," had efficiency ratings of at least "excellent," had not been convicted by a general court-martial, and had not been convicted more than once by a special court-martial.

13.  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.

14.  Army Regulation 635-200 is the current regulation that governs the separation of enlisted personnel.  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.

15.  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 evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  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.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not sufficiently mitigating to upgrade a properly-issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time or to provide eligibility for benefits from another agency.

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to an honorable 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.



      ____________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)                                         AR20090003887



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ABCMR Record of Proceedings (cont)                                         AR20090003887



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