IN THE CASE OF:	  

		BOARD DATE:	    4 January 2011

		DOCKET NUMBER:  AR20100016542 


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 his bad conduct discharge (BCD) be upgraded to a general under honorable conditions discharge.  

2.  He states:

* He was court-martialed and discharged at the end of his 2-year enlistment despite his good military record prior to the charges of drug possession
* He was young and was influenced by Vietnam veterans who were being processed out of the military
* He had sympathy for the Vietnam veterans and he was convinced he was helping them
* He graduated at the top of his class at advanced individual training (AIT) and was considered a good Soldier by his superiors

3.  He provides no additional documents in support of 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 19 January 1973 for a period of 2 years at the age of 18.  He was assigned to Fort Ord, CA, for basic combat training (BCT).  

3.  While attending BCT, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for wrongfully possessing one ounce, more or less, of marijuana.

4.  He completed AIT at Fort Huachuca, AZ and was awarded military occupational specialty 17K (Ground Surveillance Radar Crewman).  He was reassigned to the 1st Battalion, 12th Cavalry at Fort Hood, TX in April 1973.  

5.  On 10 September 1973, he was convicted by a summary court-martial of being absent without leave (AWOL) from 11 August 1973 to 4 September 1973.  He was sentenced to a reduction to private, E-1, forfeiture of $237.00 pay for one month, and to perform hard labor without confinement for a period of 45 days.  On 25 October 1973, the court-martial convening authority approved only so much of the sentence as provided for reduction to private, E-1, forfeiture of $204.00 pay for one month and to perform hard labor without confinement for    45 days.  

6.  On 18 March 1974, he accepted NJP under Article 15 for being AWOL from 7 to 14 March 1974.

7.  He was convicted by a general court-martial on 30 August 1974 of having in his possession 4.90 grams, more or less, of heroin.  He was sentenced to be dishonorably discharged from the service, forfeiture of all pay and allowances, and confinement at hard labor for nine months.  On 15 November 1974, the court-martial convening authority approved the sentence.  The forfeitures of pay and allowances became due after the date of the convening authority action.  The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review and he was confined in the U.S. Disciplinary Barracks, Fort Leavenworth, KS.  The U.S. Army Court of Military Review action is not available.  

8.  On 21 February 1975, the Secretary of the Army remitted the unexecuted portion of the sentence to confinement and mitigated the dishonorable discharge to a BCD.  
9.  General Court-Martial Order Number 208, dated 25 February 1975, stated his period of confinement had expired and he was restored to duty pending completion of appellate review.  The court-martial order stated the portion of the sentence adjudging forfeitures would not apply to pay and allowances becoming due during the period commencing on the date of the order and terminating on the date of the order directing executing of the sentence.  

10.  General Court-Martial Order Number 1247, dated 9 December 1975, stated the unexecuted portion of the sentence to confinement at hard labor was remitted and the dishonorable discharge was mitigated to a BCD after the sentence was ordered into execution.  The portion of the sentence pertaining to confinement had been served.  The BCD was ordered executed.  

11.  The applicant was discharged on 17 May 1976 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of conviction by court-martial.  He completed 2 years and 10 months of creditable active service with 173 days of lost time and 448 days of excess leave.  

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 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.

13.  Army Regulation 635-200 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was court-martialed and discharged at the end of his 2-year enlistment despite his good military record prior to the charges of drug possession.  However, his service record shows he received two Article 15s and one summary court-martial prior to his conviction by a general court-martial for possession of heroin.  

2.  He contends he was young and was influenced by Vietnam veterans.  He also states he graduated at the top of his AIT class.  However, these issues are not sufficiently mitigating to warrant an upgrade of his BCD.  

3.  Based on the seriousness of the misconduct for which he was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting his requested relief.

4.  The trial by court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

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)                                         AR20100016542





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ABCMR Record of Proceedings (cont)                                         AR20100016542



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