IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100010603


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, a discharge upgrade.

2.  The applicant states his discharge was unjust.  He was young and had two broken arms, and he wasn't aware of his rights.  He was seeking help for a drug and alcohol problem, but he was in poor health [broken arms] and couldn't perform his duties.

3.  The applicant provides no additional documents.

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 was a Regular Army infantryman.  He entered on active duty on 25 May 1972.  He completed Basic Training at Fort Ord, CA and Advanced Individual Training at Fort Lewis, WA with Company B, 2nd Battalion, 39th Infantry.  He remained with that unit after completing his training.

3.  The applicant's records contain five records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for:

	a.  being absent without leave (AWOL) from his unit from 0800 hours to 1900 hours on 5 November 1972, for which he was reduced from E-2 to E-1 and made to perform 7 days of restriction and extra duty;

	b.  being AWOL from his unit from 0800 hours, 24 January 1973 to 0630 hours, 31 January 1973, for which he received a forfeiture of $71.68 pay per month for 1 month, 14 days of extra duty, and 7 days of restriction;

	c.  willfully disobeying a lawful order to report to the Arms Room on 14 August 1973; unlawfully entering another Soldier's room on 14 August 1973 and removing a television without permission; and without authority failing to report to formation on 17 August 1973, for which he received a forfeiture of $153 pay per month for 1 month, and 21 days of restriction and extra duty;

	d.  wrongfully having in his possession a controlled substance (marijuana) on 7 September 1973, for which no punishment is shown; and

	e.  wrongfully having in his possession a controlled substance (marijuana) on board the USS Alamo on 11 September 1974, for which he received a reduction from E-2 to E-1, forfeiture of $50 pay per month for 2 months, and 7 days of extra duty and restriction.

4.  The applicant was also convicted by two special courts-martial.

	a.  On 20 February 1974, of one specification of a violation of Article 86, UCMJ, for being AWOL from on or about 1 November 1973 to on or about 5 November 1973, for which he was made to forfeit $25.00 pay per month for 1 month; and

	b.  On 11 October 1974, of one specification of a violation of Article 86, UCMJ, for being AWOL from on or about 23 April 1974 to on or about 29 April 


1974, and one specification of a violation of Article 134, UCMJ, for wrongfully and knowingly having in his possession .35 grams, more or less, of cocaine, for which he was sentenced to a bad conduct discharge.

5.  Following his 11 October 1974 conviction, the applicant was placed on excess leave pending appellate review.  On 7 August 1975, Special Court-Martial Order Number 69 showed the sentence was affirmed and the bad conduct discharge was ordered duly executed.

6.  The applicant was discharged with a bad conduct discharge on 17 March 1976.  He had 3 years, 9 months, and 9 days of creditable service, 14 days of lost time, and 412 days of excess leave.

7.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) 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.

	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.  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 change a discharge due to matters which should have been raised in the appellate process, 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 requests a discharge upgrade.

2.  The applicant was a substandard Soldier with frequent incidents of indiscipline as shown by his receipt of five NJPs and his conviction by two courts-martial.  The applicant received a bad conduct discharge for AWOL and cocaine possession.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

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 the aforementioned 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)                                         AR20100010603





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ABCMR Record of Proceedings (cont)                                         AR20100010603



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