IN THE CASE OF:
BOARD DATE: 13 January 2011
DOCKET NUMBER: AR20100015576
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 (BCD) be upgraded to general.
2. The applicant states the sentence was very harsh for a first-time offense. He states it disqualifies him for certain benefits.
3. The applicant provides no additional documentation.
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 11 February 1975. He completed training as a wheeled vehicle mechanic and was posted to Germany. He was advanced to pay grade E-3 on 12 December 1975 and to E-4 on 1 May 1977.
3. On 20 September 1977, a general court-martial convicted the applicant in accordance with his pleas of selling 4 lysergic acid diethylamide (LSD) tablets and possessing 96 LSD tablets on 17 July 1977. He was sentenced to confinement for 14 months, reduction to pay grade E-1, forfeiture of all pay and allowances, and a BCD.
4. The convening authority reduced the confinement to 10 months, but otherwise approved the sentence.
5. The U.S. Army Court of Military Review affirmed the findings and sentence on 21 March 1978. The applicant did not appeal and the BCD was ordered executed.
6. On 29 August 1978, the applicant, who had been on appellate leave since 22 May 1978, was separated with a BCD. He completed 2 years, 10 months, and 22 days of creditable active duty and had 237 days lost time.
7. The Manual for Courts-Martial Table of Maximum Punishments, then in effect, dealt with drug offenses as violations of lawful general regulations. Each such offense carried an authorized sentence of a dishonorable discharge, forfeiture of all pay and allowances, and 2 years of confinement.
8. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7b provides that a general discharge 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 honorable discharge.
9. 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 thinks his BCD was too harsh for a first offense.
2. Two offenses occurred on the same day and the applicant pled guilty to both. Compared to the authorized punishment, the sentence was not harsh at all. He could have received a dishonorable discharge and 2 years of confinement for each offense.
3. His trial by court-martial was warranted by the gravity of the offenses charged. His 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 view of the foregoing, there is no basis for granting the applicant's requested relief.
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 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) AR20100015576
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ABCMR Record of Proceedings (cont) AR20100015576
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