IN THE CASE OF:	  

		BOARD DATE:	       25 June 2009

		DOCKET NUMBER:  AR20090004775 


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 bad conduct discharge be upgraded to a discharge under honorable conditions

2.  The applicant states, in effect, that he was given a bad conduct discharge in 1980.  He was sentenced to two years confinement, of which he served one year at Fort Leavenworth Disciplinary Barracks and one year he spent on probation.  He states that he has been a good citizen and that he was a good Soldier, until he made a mistake. 

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 4 April 1980 and an honorable discharge certificate dated 11 May 1978.

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 that he enlisted in the Regular Army on 16 January 1975 for a 3-year period of service.  The applicant completed basic and advanced individual training and was awarded military occupational specialty 71G (Patient Administrative Specialist).  The highest rank he achieved while on active duty was specialist four/pay grade E-4. 

3.  The applicant was assigned to 130th Station Hospital in Germany on 29 October 1976.

4.  On 6 April 1972, the applicant was convicted at a general court-martial in the Republic of Germany for one specification of conspiracy to possess and transfer marihuana, one specification of possessing marihuana, one specification of transferring marijuana, one specification of possessing cocaine, and one specification of transferring cocaine.  He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, confinement for two years, and reduction to private/pay grade E-1.

5.  The convening authority changed the discharge from dishonorable to a bad conduct discharge and otherwise approved the sentence.

6.  On 9 November 1979, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas General Court-Martial Order Number 109, dated 26 February 1980, indicated the applicant's sentence had been affirmed and ordered the discharge sentence to be executed.

8.  On 4 April 1980, the applicant's was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Management System) based on his conviction by a court-martial.  His service was characterized as under other than honorable conditions.  His net active service was 4 years, 2 months and 20 days with 1 year of time lost during this period of service from 6 April 1979 to 4 April 1980.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge 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.

10.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States 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 contends that his bad conduct discharge should be upgraded.

2.  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.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized judgment of the members of the court-martial. 

3.  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.  The ABCMR does not upgrade discharges based solely on the passage of time.

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  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.  While the applicant's post-service citizenship is commendable, it is not sufficient to warrant upgrading a properly issued discharge. 

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090004775



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ABCMR Record of Proceedings (cont)                                         AR20090004775



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