IN THE CASE OF:	  

		BOARD DATE:	        5 November 2009

		DOCKET NUMBER:  AR20090009396 


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 on 5 August 1974, as a young and naïve Solider, he got caught with illegal drugs.  He was stationed in Germany and it was his first time being away from home.  There was no treatment available in 1975.  After his court-martial, he returned to the States and became a medic for his last 6 months.

3.  In support of his application, the applicant provides copies of his enlisted efficiency report, two letters of appreciation, 11 statements submitted in support of his request to remain in the Army and complete his term of service, and his DD Form 214 (Report of Separation from Active Duty).

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 record shows he enlisted in the Regular Army in pay grade E-3 on 10 January 1973 for 3 years.  On the date of his enlistment in the Regular Army, the applicant was 20 years and 6 months of age.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91U (Ear, Nose, and Throat Specialist).

3.  On 24 July 1973, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his appointed place of duty on 20 July 1973.  His punishment included extra duty for 14 days and a forfeiture of $25.00 pay per month for 1 month.  He did not appeal the punishment.

4.  The applicant served in Germany from 26 April 1974 to 10 April 1975.

5.  On 22 August 1974, the applicant accepted punishment under Article 15, UCMJ, for violating a lawful general order by wrongfully having in his possession a smoking pipe containing marijuana (hashish substance) residue on 13 July 1974.  His punishment included a reduction in rank (suspended), a forfeiture of 1 week of pay (suspended), and extra duty for 2 weeks.  He did not appeal the punishment.

6.  The applicant submitted a letter of appreciation, dated 10 September 1974, wherein the 56th General Hospital's patient administrator expressed his appreciation to the applicant for an outstanding job during the unit's organization day.

7.  On 26 September 1974, the applicant was convicted by a special court-martial of one specification of violating a lawful general order by wrongfully having in his possession 251.55 grams, more or less, of hashish on 5 August 1974.  He was sentenced to a reduction to pay grade E-1, to be fined $500.00, and to be discharged from the Army with a bad conduct discharge.  The sentence was approved on 9 October 1974 and the record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review.

8.  The applicant also submitted his enlisted efficiency report, dated 8 October 1974, wherein the rater stated he would promote the applicant with contemporaries.  The rater also stated that in spite of violation of legal statutes, the applicant had performed any and all duties assigned in an excellent manner.  He believed that an assignment to a larger medical facility would increase the applicant's job satisfaction.

9.  The applicant was reduced to pay grade E-1 on 9 October 1974.

10.  On 21 March 1975, the U.S. Army Court of Military Review affirmed the sentence and findings of guilty.

11.  On 14 April 1975, the applicant accepted punishment under Article 15, UCMJ, for violating a lawful general order by wrongfully having in his possession fifteen tablets of Mandrax, a controlled substance.  His punishment included a reduction to pay grade E-1 and a forfeiture of $100.00 pay for 2 months.  He did not appeal the punishment.  On 15 September 1975, the applicant's sentence under Article 15 which provided for reduction to pay grade E-1 was set aside.

12.  The applicant further submitted a letter of appreciation, dated 11 July 1975, wherein he was recognized for his knowledge and work in his MOS.  He also submitted 11 undated statements in support of his request to remain in the Army and to complete his term of service.

13.  On 19 August 1975, the convening authority, Commanding General, Headquarters, III Corps and Fort Hood, Fort Hood, Texas, ordered the sentence executed.

14.  The applicant was discharged on 29 September 1975 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 11, as a result of court-martial and issued a DD Form 259A (Bad Conduct Discharge Certificate).  He was credited with 2 years, 9 months, and 20 days of net active service.

15.  On 4 April 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

16.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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 was required to have been completed and the sentence affirmed before it could be duly executed.

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 or is otherwise so meritorious that any other characterization would be inappropriate.

18.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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 separation specifically allows such characterization.

19.  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 shows that the applicant was punished under Article 15 for wrongfully having in his possession a smoking pipe containing marijuana (hashish substance) residue on 13 July 1974 and convicted by a special court-martial of violating a lawful general order by wrongfully having in his possession 251.55 grams, more or less, of hashish on 5 August 1974.  On 14 April 1975, he was again punished under Article 15 for violating a lawful general order by wrongfully having in his possession fifteen tablets of Mandrax, a controlled substance.  He was discharged pursuant to the sentence of his 26 September 1974 special court-martial conviction and was issued a bad conduct discharge after the sentence was affirmed.

2.  The applicant's contention that his youth impacted his ability to serve has been noted.  However, the evidence shows the applicant was 20 years and 6 months of age when he enlisted in the Regular Army.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.

3.  Trial by special court-martial was warranted by the gravity of the offenses charged.  A bad conduct discharge is adjudged by a court-martial when it determines a Soldier should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment.  The applicant's offenses, when weighed with his overall disciplinary history, warranted this punishment.

4.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.  He has provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations with due process.  The applicant has submitted no evidence other than his assertion that he was naïve and there was no drug abuse treatment available to him at the time.

5.  The Board is empowered to change the characterization of and reason for the discharge if clemency is determined to be appropriate.  His record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.  Given the above, and after a thorough review of the applicant's record and the serious nature of his offenses, there is no cause for clemency.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090009396



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ABCMR Record of Proceedings (cont)                                         AR20090009396



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