IN THE CASE OF:	  

		BOARD DATE:	    16 February 2011

		DOCKET NUMBER:  AR20100021982 


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 an upgrade of his bad conduct discharge (BCD).

2.  The applicant states that prior to the incident that led to his court-marital and BCD, he was a good Soldier.  He claims he was singled out and was undeserving of the charges and court-martial.  He states he now has his life together and the discharge is hindering him from receiving benefits.

3.  The applicant provides two character references 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's record shows he enlisted in the Regular Army on 5 September 1973.  He was trained in and awarded military occupational specialty 25J (Operations Central Repairer) and private first class/E-3 is the highest rank he attained while serving on active duty.  It also shows he earned no awards or decorations during his active duty tenure and his record documents no acts of valor or significant achievement.

3.  The record shows a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 24 March 1975 for absenting himself without authority in order to avoid field duty.  His punishment for this offense included a reduction to private/E-2.

4.  On 19 May 1975, a special court marital (SPCM) found the applicant guilty of violating Article 134 of the UCMJ by wrongfully possessing and wrongfully transferring a habit-forming narcotic drug, to wit, heroin.  The resulting sentence was a reduction to private/E-1, confinement at hard labor for 6 months, forfeiture of $229.00 pay per month for 6 months, and a BCD.

5.  SPCM Order Number 61, Headquarters, 1st Armored Division, dated 28 June 1975, shows the convening authority approved the sentence, but suspended that portion of confinement in excess of 2 months.

6.  On 19 May 1975, the U.S. Army Court of Military Review affirmed the guilty findings and only so much of the sentence that provided for reduction to private/E-1 and a BCD.

7.  On 28 October 1975, Headquarters, III Corps and Fort Hood, Fort Hood, Texas, SPCM Order Number 64 directed that Article 71c having been complied with, the sentence, as modified, be duly executed.

8.  On 24 November 1975, the applicant was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations), by reason of court-martial with a BCD.  The DD Form 214 he was issued shows he completed a total of 2 years and 29 days of creditable active military service and he had accrued 52 days of lost time due to confinement.

9.  In separate hearings held on 25 May 1977 and 23 March 1982, the Army Discharge Review Board (ADRB) determined his discharge was proper and equitable after reviewing the applicant's complete military records and the issues he raised and denied his requests for an upgrade of his discharge.

10.  The applicant provides two third-party character references attesting to his good post-service citizenship.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided the policies and procedures for separating members with a dishonorable discharge or BCD.  It stipulated a Soldier will be given a BCD pursuant only to an approved sentence of a general or SPCM and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his BCD should be upgraded because he was generally a good Soldier and the discharge was undeserved has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The character references provided by the applicant documenting his good post-service conduct are noteworthy.  However, they alone are not sufficiently mitigating to support an upgrade of his discharge.

4.  The evidence reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.  In addition, his record documents no acts of valor or significant achievement and reveals a disciplinary history prior to the SPCM that led to his BCD.  Therefore, given the gravity of the offenses resulting in his court-martial conviction and BCD, his overall record of undistinguished service is not sufficiently meritorious to support clemency and/or an upgrade of his discharge.

5.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this 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 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)                                         AR20100021982



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ABCMR Record of Proceedings (cont)                                         AR20100021982



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