IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100013317 


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, that his DD Form 214 (Report of Separation from Active Duty), item 9c (Authority and Reason), be corrected to show he was separated for completion of required service.  He also requests the removal of his court-martial action from his official military personnel file (OMPF).

2.  He states he was honorably discharged from the Army on 3 March 1978 after completing his 3-year enlistment.  He is currently seeking employment and his life has totally changed since he was issued the 1975 court-martial action.  The court-martial action is affecting his search for employment.  The court-martial was brought to his attention when he applied for a position with the Census Bureau.  He was advised he could not be hired because of the court-martial action in his record.

3.  His provides his DD Form 214 and a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 requests that item 9c of his DD Form 214 be corrected to show he was released from active duty (REFRAD) on 17 March 1978 for completion of required service.  Prior to his REFRAD he requested a DD Form 214 that showed the narrative reason for separation, a narrative description of the regulatory or statutory authority for separation, and the reenlistment code.  At the time of his REFRAD he was issued a DD Form 214 annotated with dashes in item 9c.  He will be provided a copy of the DD Form 214 filed in his OMPF which shows he was REFRAD under the provisions of Army Regulation 635-200, chapter 2 with a separation program designator (SPD) code of “LBK," completion of required service.  As a result, this request will not be discussed further in this Record of Proceedings.

3.  The applicant's military records show he enlisted in the Regular Army in pay grade E-1 on 15 May 1974, for 3 years.  He completed training and he was awarded military occupational specialty 31M (Mechanical Communication Equipment Operator).

4.  On 21 May 1975, he was convicted by a general court-martial of one specification of the wrongful distribution of a controlled substance, to wit:  5 hits of Lysergic Acid Diethylamide (LSD) on 5 March 1975.  He was sentenced to confinement at hard labor for 9 months, a forfeiture of all pay and allowances, a reduction to pay grade E-1, and to be discharged from the Army with a dishonorable discharge.  The sentence was adjudged on 4 June 1975.

5.  On 11 August 1975, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 9 months, forfeiture of $228.00 per month for 9 months, and reduction to pay grade E-1 and the sentence was ordered executed except.  That portion of the sentence adjudging a dishonorable discharge was suspended for 1 year, at which time, unless sooner vacated, the suspended portion would be remitted without further action.

6.  He was reduced to pay grade E-1 on 11 August 1975.

7.  On 2 September 1975, the convening authority suspended the forfeiture in excess of $160.00 pay per month for each month until such time as the sentence was ordered into execution.  Unless the suspension was sooner vacated, the suspended portion would be remitted without further action.
8.  On 14 January 1976, the convening authority suspended the unexecuted portion of the approved sentence to a dishonorable discharge until 20 March 1976, at which time, unless sooner vacated, the suspended portion would be remitted without further action.

9.  On 4 March 1976, the U.S. Army Court of Military Review affirmed the findings of guilty and the modified sentence.

10.  On 1 November 1976, he was promoted to specialist four/pay grade E-4.

11.  On 15 March 1978, he requested a DD Form 214 that indicated the narrative reason for his separation, a narrative description of the regulatory or statutory authority for separation, and the reenlistment code.

12.  He was honorably REFRAD in pay grade E-4 on 17 March 1978 and transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was credited with 2 years, 11 months, and 28 days of net active service.  

13.  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 applicant's contentions were considered.  The available evidence shows he was convicted by a general court-martial for wrongfully distributing LSD on 
21 May 1975.  The convening authority approved a sentence that provided for a dishonorable discharge, confinement at hard labor for 9 months, a forfeiture of $228.00 pay per month for 9 months, and reduction to pay grade E-1.  The dishonorable discharge was suspended 1 year.  On 4 March 1976, the U.S. Army Court of Military Review affirmed the findings of guilty and modified the sentence. 

2.  His court-martial sentence was determined appropriate and affirmed.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  He has provided no evidence that the court-martial orders do not reflect the true state of affairs existing at the time.  Given the applicant's charge at the time and absent any mitigating factors, the court-martial was appropriate, and as a result there is an insufficient evidentiary basis to remove the court-martial action from his OMPF.
3.  The evidence also shows subsequent to his court-martial he was promoted to pay grade E-4 and was honorably REFRAD on 17 March 1978 for completion of required service.

4.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20100013317



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ABCMR Record of Proceedings (cont)                                         AR20100013317



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