IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110004916 


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, in effect, an upgrade of his bad conduct discharge (BCD).

2.  The applicant states he believes the general court-martial (GCM) was unjust and harsh.  He states the judgment of 4 December 1978 was inequitable, and he received unjust and harsh punishment without the benefit of mental health counseling.

3.  The applicant provides a self-authored statement and the attachments identified therein 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 9 February 1976 and was trained in and awarded military occupational specialty 13B (Field Artillery Crewman).  His record shows he was advanced to the rank of private first class/E-3 on 15 February 1977 and this is the highest rank he attained while serving on active duty.  It also shows he earned the Expert Marksmanship Qualification Badge with Rifle Bar and Marksman Marksmanship Qualification Badge with Hand Grenade Bar.  His record documents no acts of valor or significant achievement.

3.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 26 August 1978 for wrongfully possessing marijuana.  His punishment for this offense included a reduction to private/E-2.

4.  The applicant's record contains a Standard Form 88 (Report of Medical Examination) completed on 14 August 1978.  It shows the applicant received a "normal" psychiatric evaluation in the clinical evaluation portion of the medical examination.  The Standard Form 88 further shows the applicant received a physical profile of "111111" and he was determined to be medically qualified for retention and/or separation by the examining physician.  There are no disabling physical or mental conditions noted on the form.

5.  On 4 December 1978, a GCM found the applicant guilty pursuant to his pleas of violating Article 92 of the UCMJ by violating a general regulation by wrongfully possessing a hypodermic needle with hypodermic syringe and of the following four specifications of violating Article 134 of the UCMJ by wrongfully possessing heroin on or about 4 October 1978, wrongfully possessing marijuana on or about 19 August 1978, wrongfully selling marijuana on or about 19 August 1978, and wrongfully transferring marijuana on or about 19 August 1978.  The resulting sentence was a BCD, confinement at hard labor for 7 months, forfeiture of all pay and allowances, and reduction to private/E-1.

6.  GCM Order Number 109, Headquarters, 3rd Infantry Division, dated 21 December 1978, shows the sentence adjudged on 4 December 1978 was approved by the GCM convening authority.

7.  On 28 June 1979, the U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact and accordingly affirmed them.

8.  On 11 October 1979, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, GCM Order Number 546 directed that Article 71c having been complied with, the BCD portion of the applicant's sentence be duly executed.

9.  On 1 November 1979, the applicant was discharged by reason of court-martial with a BCD under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations).  The DD Form 214 he was issued shows he completed a total of 3 years, 3 months, and 11 days of creditable active military service and accrued 163 days of lost time due to imprisonment.

10.  The applicant provides supporting statements from his sister and an Army chaplain who served with him in Germany.  They both attest to his good post-service conduct.  He also provides a letter from his mother to a Member of Congress, dated 3 November 1978.  In this letter, his mother recounts the applicant's drug use and the events leading to her request that the applicant be granted a discharge under the provisions of Army Regulation 635-200, chapter 10, and be discharged in lieu of trial by court-martial

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the version of regulation in effect at the time prescribed the policies and procedures for separating members with a dishonorable or BCD.  It stipulated that a Soldier would be given a BCD pursuant only to an approved sentence of a GCM or special court-martial and that the appellate review must be completed and affirmed before the sentence is 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 was unjust and too harsh 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.  The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.

3.  Further, the record confirms the applicant underwent a complete separation medical examination that confirmed he suffered from no disabling physical or mental condition.  Notwithstanding his good post-service conduct as outlined in the supporting statements provided with his application, based on the gravity of the offenses resulting in his court-martial conviction and BCD, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his discharge.

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)                                         AR20110004916



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ABCMR Record of Proceedings (cont)                                         AR20110004916



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