BOARD DATE:	  8 April 2010

		DOCKET NUMBER:  AR20090016780 


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 his bad conduct discharge (BCD) be upgraded to a general discharge (GD) under honorable conditions.  

2.  The applicant states he is not the man he was in the 1980's.  Today, he is a responsible law abiding citizen.  

3.  The applicant provides a third-party letter 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 he enlisted in the Regular Army and entered active duty on 28 April 1977.  He was trained in and awarded military occupational specialty 11B (Infantryman) and specialist four (SP4)/E-4 is the highest rank that he attained while on active duty. 

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he earned no individual awards or decorations during his active duty tenure.  His record documents no acts of valor or significant achievement.  

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 May 1978, for stealing a newspaper vending machine.  It also includes his accrual of 35 days of time lost due to him being absent without leave (AWOL) from 7 to 21 December 1978 and being in confinement from 22 December 1978 to 11 January 1979.  

5.  On 20 November 1978, a special court-martial (SPCM) found the applicant guilty, pursuant to his plea, of two specifications of violating Article 92 of the UCMJ by wrongfully possessing a dangerous drug (lysergic acid diethylamide (LSD)) on or about 30 August 1978; and by wrongfully selling a dangerous drug to another Soldier on or about 30 August 1978.  The resulting sentence was confinement at hard labor for 2 months, reduction to private/E-1, and a BCD.  

6.  On 8 December 1978, in Headquarters, 25th Infantry Division, Schofield Barracks, Hawaii, SPCM Order Number 51, the appropriate convening authority approved the applicant's sentence and directed the applicant be confined at the United States Disciplinary Barracks, Fort Leavenworth, Kansas, pending completion of the appellate review.  

7.  On 19 June 1979, the United States Army Court of Military Review affirmed the findings and sentence in the applicant's case after determining they were correct in law and fact.  

8.  Headquarters, 7th Infantry Division and Fort Ord, California, SPCM Order Number 96, dated 7 November 1980, shows the applicant's conviction and sentence had been affirmed pursuant to Article 66 of the UCMJ and directed, Article 71(c) of the UCMJ having been complied with, the BCD portion of the applicant’s sentence be executed.  On 2 December 1980, the applicant was discharged accordingly.  



9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon discharge shows he completed 3 years and 6 months of creditable active military service and accrued 35 days of time lost due to being AWOL and in confinement.  

10.  The applicant provides a third-party statement from his employer and landlord who states he has known the applicant for 12 years.  He claims the applicant has worked for him and rented an apartment from him.  He further states he knows the applicant to be a good, honest, and dependable person.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated, in pertinent part, that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.  The regulation stipulates a GD is issued to Soldiers with satisfactory service but not sufficiently meritorious to warrant an honorable discharge.  A GD may be issued only when the reason for the Soldier’s separation allows it.  

12.  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 contention that his BCD should be upgraded to a GD because he has changed and become a law abiding citizen has been carefully considered. Although his post service conduct, as outlined in the third-party supporting statement, is noteworthy, these factors are not sufficiently mitigating to support granting the requested relief. 

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ, is prohibited.  The 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 evidence of record reveals no error or injustice related to the applicant’s court-martial and his subsequent discharge.  His record reveals no acts of valor or significant achievement; however, it does reveal a disciplinary history that includes his receiving NJP.  Given his record of misconduct, the gravity of the offenses that resulted in his SPCM conviction, and based on his undistinguished record of service, there is an insufficient evidentiary basis to support clemency in this case. 

4.  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)                                         AR20090016780



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ABCMR Record of Proceedings (cont)                                         AR20090016780



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