IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100021030


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.  The applicant states that he is asking for an upgrade of his BCD.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 6 March 1979.  He completed training and he was awarded military occupational specialty 63B (Wheel Vehicle 

Mechanic).  The highest rank/grade he attained while serving on active duty was private (PV2)/E2.

3.  At a general court-martial at Fuerth, Germany, he was charged with:

* Charge I:  2 specifications of conspiracy to sell diazepam, commonly referred to as valium
* Charge II:  4 specifications of violating a lawful general regulation by wrongfully possessing and selling diazepam
* Charge III:  1 specification of wrongfully possessing heroin

He pled not guilty to all charges and specifications.

4.  On 10 March 1980, the Court found him guilty of Charge I and its specifications, guilty of 2 specifications of Charge II, and guilty of Charge III.  The Court sentenced him to reduction to private (PV1)/E-1, confinement at hard labor for 10 months, forfeiture of all pay and allowances, and a BCD.

5.  On 13 June 1980, the convening authority approved the sentence and, except for the BCD, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

6.  On an unknown date in 1980, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 10 March 1981, the U.S. Court of Military Appeals denied his petition for review.

7.  General Court-Martial Order Number 11, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, dated 3 April 1981, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered his BCD duly executed.

8.  On 15 April 1981, he was discharged in accordance with the directives of General Court-Martial Order Number 11.  His DD Form 214 shows he was discharged as a result of court-martial, with a BCD character of service.  This form further shows he completed 1 year, 5 months, and 21 days of creditable active service.

9.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7c provides that an under other-than-honorable-conditions discharge is an administrative separation from the 

Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial in certain circumstances.

10.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will 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 affirmed sentence ordered duly executed.  

11.  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's request for upgrade of his BCD has been carefully considered; however, there is insufficient evidence to support his request.  

2.  He was given a BCD pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  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.

4.  In view of the foregoing, there is insufficient basis to grant 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 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20100021030



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