IN THE CASE OF:	

		BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090007371 


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.

2.  The applicant states that he was promised a discharge upgrade from a staff member of the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) in Schweinfurt, Germany.  He pled guilty because he was young and scared and it was someone else's word against his own.  He lost his copy of the court-martial and he can't find it.  He has been an outstanding elected official and citizen for the last 18 years.

3.  In support of his application, the applicant provides a completed Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) and VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative).  He also provides copies of his enlisted evaluation report; his 1978 and 1979 Army certificates of training and completion; his 1979 Army Good Conduct Medal orders; a Review of the Staff Judge Advocate (SJA) form; a U.S. Court of Military Review memorandum opinion; his appeal and denial; his DD Form 214 (Certificate of Release or Discharge from Active Duty); his 1997 through 2006 civilian training completion certificates; an undated Federal Drug Testing Custody and Control Form; three letters, endorsements, and newspaper articles supporting his appointment to the Game Commission and Fish and Wildlife Advisory Committee; his employment background check; and two character reference letters.


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional documentation 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 U.S. Army Reserve on 15 December 1975.  He enlisted in the Regular Army in pay grade E-1 on 19 December 1975 for 4 years.  On the date of his enlistment in the Regular Army, the applicant was 17 years and 3 months of age.  He completed basic and advanced individual training and was awarded military occupational specialty 62E (Heavy Construction Equipment Operator).  He was promoted to the rank of sergeant, pay grade E-5, effective 27 July 1978.  He served in Germany from 6 June 1978 to 14 February 1980.

3.  Around June 1979, the applicant requested discharge in lieu of court-martial.  His company and battalion commanders and CID supported his request.  The general court-martial convening authority disapproved his request.

4.  On 3 October 1979, the applicant offered a plea of guilty, made with no force or coercion, after examining the charges preferred against him, the investigating officer's report and all statements of witnesses, and after consulting with counsel. 
He also acknowledged that he understood the meaning and effects of his guilty pleas, the maximum punishment authorized in his case, and that the court could find him guilty on the basis of his plea without the introduction of any evidence at the trial by his counsel.  On 19 June 1979 and 22 October 1979, the applicant was 20 and 21 years of age, respectively.

5.  On 22 October 1979, the applicant was convicted pursuant to his pleas by a general court-martial of one specification of the wrongful possession of 70 grams of marijuana on 19 June 1979, one specification of the wrongful transfer of marijuana on 19 June 1979, one specification of the wrongful possession of 561 grams of marijuana on 19 June 1979, and one specification of the wrongful possession of 128 dosage units of lysergic acid diethylamide (LSD) on 19 June 1979.  The applicant was sentenced to reduction to pay grade E-1, confinement at hard labor for 2 years, forfeiture of all pay and allowances, and to be discharged from the Army with a bad conduct discharge.  The sentence was adjudged on 22 October 1979.

6.  The applicant submits a copy of the SJA review of his record of trial, dated 27 November 1979.  The SJA stated that the 3rd Infantry Division, upon review of the applicant's record of trial, stated that the applicant's company commander did not recommend a general court-martial as he had been informed by CID that the applicant had helped with some major arrests in the Schweinfurt area and was cooperating with German police.  He believed the applicant could be of service to the CID for the remainder of his active duty tour.  He believed the applicant should receive a discharge based on what he had done, but he could not condone the applicant's actions in dealing with drugs.  The record of trial revealed that the special agent with the Schweinfurt Section Region CID testified that the applicant's assistance had been of significant value to CID, contributed significantly to the drug suppression activity in Schweinfurt, assisted in closing down a six-man trafficking ring in the Conn Barracks right after his apprehension, and assisted German police in the identification and apprehension of a German national for selling large quantities of hashish to U.S. forces in the area.

7.  The SJA review also revealed that a special agent with the Schweinfurt Resident Agency CID testified that the applicant provided substantial assistance to CID and German authorities after he was apprehended at the risk of his own life, to include uncovering information about plots against himself and CID, seizure of an amount of cocaine said to be valued at about $65,000.000, and a laundering process at the Noncommissioned Officers (NCO) Club that involved exchanging of marks and American dollars.  The SJA recommended approval of the findings and pursuant to pretrial agreement, approval of only so much of the sentence as provided for reduction to pay grade E-1, forfeiture of all pay and allowances, confinement at hard labor for 13 months, and a bad conduct discharge.

8.  On 15 February 1980, the convening authority, the Commanding General, Headquarters, 3rd Infantry Division, approved only so much of the sentence as provided for reduction in grade to pay grade E-1, confinement at hard labor for 13 months, forfeiture of all pay and allowances, and a bad conduct discharge.  The convening authority deferred the confinement at hard labor for 13 months on 29 October 1979 and rescinded the deferment on 15 February 1980.  The applicant was placed in confinement and the record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.

9.  On 30 April 1980, the U.S. Army Court of Military Review approved the findings of guilty and found the sentence correct in law and fact and affirmed the sentence.

10.  On 19 June 1980, the applicant was notified of the decision of the U.S. Army Court of Military Review and entered a petition through counsel for the U.S. Court of Military Appeals to review his conviction and sentence on the same date.

11.  On 22 August 1980, the U.S. Court of Military Appeals denied the applicant's petition.  The court determined that his case did not contain errors of law which would warrant further review.

12.  On 9 September 1980, the appropriate authority approved the sentence and ordered it duly executed.

13.  The applicant was discharged on 9 October 1980 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, as a result of court-martial with a character of service of bad conduct.  He was credited with 4 years, 1 month, and 19 days of net active service and 245 days of lost time from 22 to 28 October 1979 and from 15 February 1980 to 9 October 1980 due to confinement.

14.  The applicant submits documentation pertaining to his many achievements earned and performance after his military service.  He also submits two character reference letters attesting to his valuable work as a life-long resident of Clarion County, Pennsylvania, and as an elected township supervisor.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

16.  Army Regulation 635-200, chapter 10, provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges were preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions discharge was normally considered appropriate.

17.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

18.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

19.  Army Regulation 635-200, paragraph 3-7c, stated a discharge under other than honorable conditions was an administrative separation from the service under conditions other than honorable.  It could be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service in the following circumstances:  (1) when the reason for separation was based upon a pattern of behavior that constituted a significant departure from the conduct expected of members of the Army or (2) when the reason for separation was based upon one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Army.

20.  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 change a court-martial 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 evidence of record shows the applicant was convicted by a general court-martial for wrongfully possessing marijuana, transferring marijuana, and possessing LSD on 19 June 1979 pursuant to his plea.  He was sentenced to reduction in grade, confinement, forfeitures, and to be discharged pursuant to the sentence of a general court-martial with a bad conduct discharge.

2.  The evidence submitted by the applicant shows he cooperated with and provided substantial assistance to CID and the German authorities with some major arrests, to include closing down a drug trafficking ring and a money laundering scheme involving the NCO Club, after his apprehension.  His record contains evidence of acts warranting special recognition for clemency and an upgrade of his discharge.  His chain of command recommended the approval of a chapter 10 discharge and at that time an under other than honorable conditions discharge was normally considered appropriate; however, the general court-martial convening authority disapproved the request.  The evidence shows the applicant's misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  The applicant’s conviction by court-martial cannot be overturned; however, based on the foregoing and the applicant's post-service conduct and as a matter    of equity, it would now be in the interest of justice to upgrade his bad conduct characterization of service to under other than honorable conditions.

4.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant was discharged from active duty under other than honorable conditions on 9 October 1980 in pay grade E-1 and issuing him a corrected DD Form 214 reflecting his character of service as under other than honorable conditions.



      ____________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)                                         AR20090007371



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ABCMR Record of Proceedings (cont)                                         AR20090007371



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