IN THE CASE OF:	  

		BOARD DATE:	  9 September 2009

		DOCKET NUMBER:  AR20090004178 


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 discharge characterized as under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he cannot maintain gainful employment.  He offers that he was caught up in a bad situation and there were no drug abuse programs during his service in the military.  He adds that he is "straight" now, but he is having trouble finding a job.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), three certificates, job description, two thank-you letters, two letters of support, and three congratulatory notes.

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 22 September 1975.  He was trained in and awarded military occupational specialty 76U (Communication Electronics Repair Parts Specialist).

3.  The certificates provided by the applicant show that he successfully completed a job readiness course on 26 February 2008 and an employability skills/life skills training course on 6 September 2001.  Additionally, he provided a certificate showing that he was appointed as Sergeant of Arms at his church for the year 2008.

4.  The applicant received three congratulatory notes for a job well done.  He also received two notes thanking him for not giving up and working so hard.

5.  In a supporting letter, the pastor of Mariah Walker AME Church said that the applicant volunteered as the church custodian.  He added that the applicant was very intelligent, capable, trustworthy, and a dependable person.

6.  The medical director of Rodgers South Clinic verified that the applicant was enrolled in the methadone treatment program at the clinic.  He said that the applicant was also receiving weekly substance abuse counseling and assistance on other personal issues.

7.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he served in Germany from 13 October 1976 to 18 September 1978 and earned no individual awards or decorations during his active duty tenure.  His record documents no acts of valor or service warranting special recognition.

8.  Special Court-Martial (SPCM) Order Number 36, dated 5 October 1978, shows that the applicant was found guilty of the following violations of articles of the Uniform Code of Military Justice (UCMJ) as indicated:  Article 121, larceny; Article 130, unlawful entry with the intent to commit a criminal offense; and Article 134, wrongful possession of heroin.  His punishment consisted of confinement at hard labor for 2 months, a forfeiture of $260.00 pay per month for 3 months, and a bad conduct discharge (BCD).  The sentence was adjudged on 14 September 1978.

9.  On 28 December 1978, the U.S. Army Court of Military Review, having found the findings of guilty and the sentence correct in law and fact and having determined on the basis of the entire record that they should be approved, such findings of guilty and the sentence were affirmed.

10.  The applicant's DD Form 214 shows that he was discharged under conditions other than honorable on 1 June 1979.  The authority and reason were listed as chapter 11, Army Regulation 635-200 (Personnel Separations).  The type of certificate issued was listed as a DD Form 259A (BCD).  The applicant had completed 3 years, 6 months, and 13 days of total active service and he had a total of 58 days of lost time

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge.  Paragraph 11-2 provided that a bad conduct discharge would 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.

12.  Army Regulation 635-200, 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.

13.  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.

14.  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's contention that his discharge should be upgraded in order to maintain gainful employment was carefully considered.  However, while his current job situation is unfortunate, this factor is not sufficiently mitigating to support clemency in this case.

2.  Additionally, the fact that the applicant is in the methadone treatment program and receiving substance abuse counseling in addition to volunteering at his church is commendable.  However, good post-service conduct alone is not a basis for upgrading his discharge.

3.  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.

4.  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 or service warranting special recognition.  Given the gravity of the offenses that resulted in his SPCM conviction and BCD and based on his undistinguished record of service, there is an insufficient evidentiary basis to support clemency in this case.

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)                                         AR20090004178



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004178



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1