IN THE CASE OF:	

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090012661 


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, an upgrade of his bad conduct discharge (BCD).   

2.  The applicant states, in effect, that he enlisted in the Regular Army right after high school and he took to Army life very well.  He loved the Army and felt very proud serving his country.  He was promoted to sergeant in 2 1/2 years.  However, he got involved with the wrong crowd, he became reckless, he became addicted to heroin, and he was discharged from the Army.  He has reclaimed his life, but he lost his job and he needs assistance to pay for the methadone program.  He finally states that an upgraded discharge will allow the Department of Veterans Affairs (VA) to provide him the assistance that he needs and he can continue to be a contributing member of society.    

3.  The applicant provides a self-authored letter and a letter from the Central Florida Treatment Centers 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 record shows that he enlisted in the Regular Army on 19 May 1977.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  The applicant's record shows the highest rank he attained during his tenure of service was sergeant/pay grade E-5.  

3.  On 8 April 1980, the applicant was convicted by a general court-martial (GCM) of two specifications of the wrongful transfer of heroin, two specifications of the wrongful possession of heroin and one specification of the wrongful sale of heroin.  He was sentenced to a reduction to pay grade E-1, confinement at hard labor for 2 years, and a BCD.

4.  The applicant's military personnel records contain a DD Form 214 and a 
DD Form 215 (Correction to the DD Form 214) which show he was discharged on 9 January 1980 with a BCD as a result of court-martial.  He completed a total of 2 years, 10 months, and 15 days of military service.  

5.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Paragraph 11-2 at the time provided the policies and procedures for separating members with a dishonorable discharge or a BCD.  It stipulated, in pertinent part, that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial.

6.  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.

7.  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.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and the letters that he submitted in support of his application were carefully considered.  However, there is insufficient evidence to support granting the applicant's requested relief.

2.  The evidence of record shows no error or injustice related to the applicant’s GCM conviction and/or his subsequent BCD.  By law, any redress of the finality of a court-martial conviction under the UCMJ is prohibited.  This 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 overall record of service reveals no acts of valor, significant achievement, or service warranting special recognition.

4.  Additionally, the ABCMR does not correct records solely for the purpose of establishing eligibility for VA benefits or other like programs.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily 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)                                         AR20090012661



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ABCMR Record of Proceedings (cont)                                         AR20090012661



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