IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100010562 


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 upgrade of his bad conduct discharge (BCD).

2.  He states he is an African American and he was not guilty of selling drugs because he was set-up by racist Soldiers and officers due to the racist climate at the time.  He was mistreated, attacked, beaten, and forced to fight other Soldiers every day at Fort Hood, TX in 1977.  He was told if he didn’t become a good
n----r, he would be hanged or sent to Fort Leavenworth, KS.  He enlisted in 1975 and spent about 6 months at Fort Dix, NJ and 18 months at Fort Jackson, SC.  He never had a problem with racist Soldiers and he had a clean record.  Only when he transferred to Fort Hood, TX, Company A, 163rd Military Intelligence Battalion, and he was told by a sergeant and others that just because they called him a n----r, he was not going to get away with talking back, as he would say “why are you being a racist and treating me worse than a dog.”

3.  He provides a copy of a letter to his mother from the Deputy Inspector General (Investigations and Assistance), Office of the Inspector General and Auditor General.

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 8 October 1975.  He was discharged from the USAR DEP on 4 November 1975 and he enlisted in the Regular Army on 5 November 1975 for 3 years in pay grade E-1.  He completed training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  He was advanced to pay grade E-2 on 5 March 1976.

3.  On 7 February 1977, he was convicted by a special court-martial of:

* wrongfully, unlawfully, and intentionally delivering by offering to sell amphetamines and/or methamphetamines on or about 21 October 1976
* wrongfully possessing 11.50 grams, more or less, of marijuana on or about 28 November 1976
* wrongfully soliciting another Soldier to participate in the wrongful transfer of marijuana on or about 28 October 1976 and 5, 15, and 23 January 1977 (four specifications)
* wrongfully transferring to a Soldier one bag, containing some amount, more or less, of marijuana on or about 28 November 1976

He was sentenced to confinement at hard labor for 1 month, forfeiture of $249.00 pay for 6 months, and to be discharged from the service with a BCD.  The sentence was adjudged on 12 March 1977.

4.  In a letter, dated 2 June 1977, the Deputy Inspector General (Investigations and Assistance), Office of the Inspector General and Auditor General, advised his mother of his pending BCD pursuant to a special court-martial he received on 21 March 1977.  The III Corps Commander was expected to complete his review of the court-martial.  If the BCD was approved, the applicant could request to be placed on excess leave or returned to duty pending appellate review of his court-martial.  The letter also advised her that his rights had been protected and he had been afforded due process as intended by law and regulations.

5.  On 27 March 1978, the U.S. Army Court of Military Review stated they were not convinced, however, beyond a reasonable doubt of the applicant’s guilt of the possession of marijuana on 28 November 1976.  Therefore, the court set aside the finding of guilty of the charge and dismissed the charge.  The court affirmed the remaining findings and the sentence.

6.  In August 1978, the U.S. Court of Military Appeals denied the applicant's petition for a review of his case.

7.  On 21 September 1978, Headquarters, III Corps, Fort Hood, noted that the remaining findings of guilty and the sentence to a BCD, confinement, and forfeitures had been affirmed.

8.  He was accordingly discharged on 18 October 1979 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial.  He was credited with completing 3 years, 10 months, and 18 days of net active service and 26 days of time lost.

9.  On 15 December 1981, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his BCD.

10.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 specified a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before the bad conduct discharge could be duly executed.

11.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

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 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 the applicant was convicted by a special court-martial for wrongfully, unlawfully, and intentionally delivering by offering to sell amphetamines and/or methamphetamines; three counts of wrongfully soliciting another Soldier to participate in the wrongful transfer of marijuana; and wrongfully transferring one bag of some amount of marijuana to a Soldier.  He was subsequently discharged pursuant to the sentence of a special court-martial and he was issued a BCD after his sentence was affirmed.

2.  Trial by special court-martial was warranted by the gravity of the offenses charged.  A BCD is adjudged by a court-martial when it determines a Soldier should be separated for bad conduct.  It appears his offenses warranted this punishment.

3.  He has not submitted evidence to show that his discharge is unjust.  There is no error or injustice apparent in his record.  He has not provided any sufficient evidence or argument to show his discharge should be upgraded to honorable.  He was properly discharged in accordance with pertinent regulations, with due process, with no violation of his rights.  

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing evidence, he is not entitled to an upgrade of his discharge.

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)                                         AR20100010562



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ABCMR Record of Proceedings (cont)                                         AR20100010562


   
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