IN THE CASE OF:	  

		BOARD DATE:	  8 April 2010

		DOCKET NUMBER:  AR20090017542 


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 to a general discharge under honorable conditions. 

2.  The applicant states that at the time of his conviction, he was under the influence of drugs causing a change in his person.  He adds that he has abstained from drug use during the past 20 years and would like his discharge upgraded.

3.  The applicant provides no supporting documents with 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 enlisted in the Regular Army on 28 January 1976 for a 3-year period of service.  He completed basic and advanced individual training meeting qualifications for military occupational specialty 45K (Tank Turret Repairman).   

3.  The applicant was assigned to the 699th Maintenance Company, 85th Maintenance Battalion stationed in the Federal Republic of Germany.  There are no reported acts of valor or heroism documented in his Official Military Personnel File.

4.  On 8 December 1976, the applicant was convicted at a general court-martial in the Federal Republic of Germany of two specifications of committing an indecent assault against a female Soldier in violation of Article 134 of the Uniform Code of Military Justice (UCMJ).  He was sentenced to a bad conduct discharge, confinement at hard labor for 18 months, and a forfeiture of all pay and allowances.  

5.  On 21 January 1977, the convening authority approved the sentence.  On 22 July 1977, the U.S. Army Court of Military Review affirmed the findings and sentence.  On 2 August 1977, the applicant acknowledged that he had received the U.S. Army Court of Military Review's decision.  He further acknowledged he had the right to appeal to the U.S. Army Court of Military Appeals within 30 days. 

6.  The applicant petitioned for a Grant of Review to the U.S. Army Court of Military Appeals.  His petition was denied on 19 October 1977.

7.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 1104, dated 8 November 1977, indicate the applicant's sentence had been affirmed and ordered confinement.

8.  The applicant was discharged with a bad conduct discharge on 25 January 1978 by Order Number 21-1, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, and dated 31 January 1978.

9.  Accordingly, the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Management System) based on his conviction by a court-martial.  His service was characterized as under other than honorable conditions.  His net active service was 8 months and 8 days with 470 days of lost time during his period of service from 13 October 1976 to 25 January 1978.



10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that, the appellate review must be completed and affirmed sentence ordered duly executed.

11.  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 contends that his bad conduct discharge should be upgraded.

2.  The evidence shows the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized judgment of the members of the court-martial. 

3.  Any redress by the ABCMR of the finality of a court-martial conviction, is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The ABCMR does not upgrade discharges based solely on the passage of time.

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence to show the applicant was recognized for acts of valor or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.  

5.  While the applicant's post-service abstinence from illegal drugs for 20 years is commendable, it is not sufficient to warrant upgrading a properly issued discharge. 

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to general under honorable conditions.

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)                                         AR20090017542



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017542



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1