IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100022151 


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 to the character of his discharge.

2.  He states:

	a.  He has been a good person since his discharge, has not been in any trouble since, and quit drinking in October 2007.

	b.  In 2008, he was diagnosed with hepatitis C and found that it was the cause of his heart attack in 2009.  He is no longer able to work due to the damage, so he lost everything.

	c.  He feels he received erroneous advice from the attorney the Judge Advocate General provided.  He was going through a lot and pled guilty to the charges.

	d.  He spent an additional 90 days in jail and was given a bad conduct discharge.

	e.  He believes he was coerced into pleading guilty because there was not enough evidence to convict him and it was another Soldier's word against his.

	f.  He believes he was railroaded out of the Army in lieu of a lengthy medical board process.  He sustained injuries to his back as the result of an automobile accident in July 1982.  As a result, he was unable to perform his military duties and was told he would be processed out of the military.

	g.  He believes the next month the allegations started.  Since he was married to a German woman they assumed he had connections with the Germans that could get the Soldier what he needed.

	h.  He tried to get on with his life without worrying about his discharge.  Even though his injuries from the car accident continued to bother him, he continued working and supporting his family.

	i.  His health has declined, his employment opportunities have dried up, and he now needs assistance, but is unable to get it because of the character of his discharge.  Therefore, he humbly asks the Board to upgrade his DD Form 214 (Certificate of Release or Discharge from Active Duty) based on the evidence he submitted.

3.  He provides:

* a self-authored statement
* his DD Form 214 
* four pages of his medical records
* two personal or character references

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 his last enlistment in the Regular Army began on 23 January 1980.

3.  He submitted a Standard Form 502 (Clinical Record), dated 4 August 1982, and a DA Form 3647-1 (Inpatient Treatment Record Coversheet) which state he was injured in a car accident while a passenger in the front seat and not wearing a seat belt.  He sustained multiple small facial lacerations and abrasions on the left side of his face and forehead and a possible mild compression fracture of the L1 and L2 vertebrae with no displacement and hardly any wedging.

4.  On 25 May 1983, the applicant was convicted by a special court-martial under the authority of Headquarters, V Corps, for possessing 33 pieces, more or less, of marijuana in hashish form on 13 March 1983 and wrongfully distributing some amount of marijuana in the form of hashish between 14 and 16 March 1983.

5.  The applicant was sentenced to be reduced to private/E-1, forfeiture of pay in the amount of $200.00 per month for 3 months, confinement to hard labor for 75 days, and a bad conduct discharge.  The convening authority approved the sentence on 13 July 1983.  On 14 July 1983, the convening authority remitted the remaining confinement.

6.  On 20 December 1983, the U.S. Army Court of Military Review affirmed the findings of guilty, found the sentence correct in law and fact, and affirmed the sentence.

7.  On 4 April 1984, in accordance with Special Court-Martial Order Number 127 issued by U.S. Army Correctional Activity, Fort Riley KS, the applicant's sentence pertaining to his confinement having been served, his bad conduct discharge was ordered to be duly executed.

8.  On 25 April 1984, he was discharged accordingly.  His DD Form 214 shows his total active service as 6 years, 8 months, and 12 days with time lost from 25 May to 13 July 1983.  Item 24 (Character of Service) of his DD Form 214 shows "Bad Conduct."

9.  The character references the applicant submitted were from his minister and friend.  These individuals note the applicant is friendly, honest, and giving.

10.  References:

	a.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate

	b.  Army Regulation 635-200, 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.

	c.  Army Regulation 635-200 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

	d.  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 evidence does not establish that the applicant was court-martialed instead of being processed for medical discharge.

2.  His contention that he now needs assistance is not sufficiently compelling or mitigating to warrant the relief requested.

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 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.  Therefore, there is no legal basis for granting the applicant's request for relief.

5.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20100022151



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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