BOARD DATE:	 8 April 2010

		DOCKET NUMBER:  AR20090016377 


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 an upgrade of his bad conduct discharge (BCD) to a general discharge.

2.  The applicant states that he has paid a high price for an unjustifiable error.

3.  In support of his application, the applicant provides copies of his general court-martial orders, his excess leave orders, his DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction), his DD Form 214 (Report of Separation from Active Duty), and discharge orders.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's BCD be upgraded and correction to item 18f of the applicant's DD Form 214.

2.  Counsel states that the applicant does not want to diminish the fact that he did have in his possession .11 grams of cocaine and realizes that it is not only a controlled substance, but a very dangerous drug.  Counsel also states, in effect, that as a result of a general court-martial, the applicant was sentenced to 1 year at hard labor and a BCD.  The applicant has lived with the consequences of his actions, the actions of a young Soldier far from home, for over 30 years and wants only to show pride in his service.  Counsel asks the Board to consider the fact that the amount of cocaine was very small and the applicant has paid a very high price for that mistake.  Counsel further states that item 18f (foreign and/or sea service this period) of the applicant's DD Form 214 clearly contains as error as he did not serve 10 years, 11 months, and 23 days of foreign service.

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 was inducted into the Army of the United States in pay grade E-1 on 27 December 1972 with a moral eligibility waiver.  At the time of his induction, he was 20 years and 2 months of age.  He completed training and was awarded military occupational specialty 64C (motor transport operator).  He was promoted to pay grade E-3 on 6 April 1973.

3.  The applicant served in Germany from 12 June 1973 to 4 June 1974, a period of 11 months and 23 days.

4.  On 15 February 1974, the applicant accepted punishment under Article 15, Uniform Code of Military Justice, for absenting himself from his assigned places of duty to wit:  work call formation, latrine detail, and technical supply, on 5 February 1974.  His punishment included a reduction to pay grade E-2 and 14 days of extra duty and restriction.

5.  On 8 June 1974, the applicant was convicted by a general court-martial of the wrongful possession of .11 grams of cocaine mixed with an unidentified substance on 16 February 1974.  The applicant was sentenced to confinement at hard labor for 1 year, forfeiture of all pay and allowances, and to be discharged from the Army with a BCD.  The sentence was adjudged on 5 June 1974.

6.  On 10 July 1974, the convening authority approved the applicant's sentence and ordered him placed in confinement pending completion of appellate review.  He was reduced to pay grade E-1 on 10 July 1974.

7.  On 19 December 1974, the convening authority remitted so much of the applicant's sentence to confinement at hard labor in excess of 8 months.

8.  On 20 January 1975, the U.S. Army Court of Military Review affirmed only so much of the applicant's sentence as provided for a BCD, confinement at hard labor for 6 months, and forfeiture of all pay and allowances.

9.  On 22 April 1975, the U.S. Court of Military Appeals denied the applicant's petition for review of his case.

10.  The applicant was discharged on 14 May 1975 in pay grade E-1 under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 11-2, as a result of a court-martial and issued a BCD.  He was credited with 2 years, 7 months, and 31 days of net active service and 197 days of lost time due to confinement.

11.  Item 18f of his DD Form 214 shows a credit of 10 years, 11 months, and 23 days of foreign service.

12.  The applicant's available records show the highest pay grade he attained while on active duty was E-3 prior to his 1975 discharge.  His record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11, paragraph 11-2, provided, in pertinent part, that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the sentence affirmed before it could be duly executed.

14.  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 was 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.

15.  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.

16.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  This regulation specified that item 18(f) would contain the total amount of active duty served outside the continental limits of the United States during the period covered by the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his BCD.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  The evidence of record shows that the applicant was convicted by a general court-martial for the wrongful possession of cocaine.  His sentence included confinement at hard labor, reduced to 6 months, and to be discharged with a BCD.  Upon completion of confinement, he was restored to duty pending completion of appellate review.  His sentence was affirmed and he was discharged pursuant to the sentence of a general court-martial and was issued a BCD.

4.  Counsel's contention that the applicant's youth impacted his ability to serve successfully is without merit.  The applicant was 20 years and 2 months of age when he was inducted into the Army and over 21 years of age at the time of the offense.  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.  Neither the applicant nor counsel has provided any evidence to show that the applicant's discharge was unjust at the time of his offense.  They have not provided evidence sufficient to mitigate the character of his discharge.

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.  Counsel requests that item 18f of the applicant's DD Form 214 be corrected.  The evidence of record shows that during the period covered by the applicant's DD Form 214 he served in Germany from 12 June 1973 to 4 June 1974, a period of 11 months and 23 days.  Due to an administrative error, he was credited with 10 years, 11 months, and 23 days of foreign service in item 18f.  Therefore, he is entitled to have item 18f of his DD Form 214 corrected to show 11 months and 23 day of foreign service.  Correction to item 18f does not require any other adjustment to item 18 (Record of Service) of the DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ___x_____  ___x__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing 11 months and 23 days of foreign service in item 18f of the applicant's DD Form 214 and by providing him a corrected DD Form 214 that includes this change.


2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his BCD to a general discharge.



      ___________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)                                         AR20090016377



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ABCMR Record of Proceedings (cont)                                         AR20090016377



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