IN THE CASE OF:	  

		BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110005748 


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 two separate applications, upgrade of his bad conduct discharge (BCD).

2.  The applicant states he:

* was young, dumb, and stupid at the time of his court-martial
* never stopped loving his country
* did almost all of his time before he got in trouble
* never profited from knowing about a drug deal
* was in Germany at 17 years of age

3.  The applicant provides two DD Forms 293 (Application for the Review of Discharge from the Armed Forces of the United States) and 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 was born on 27 July 1960.  He enlisted in the Regular Army on 7 March 1978 for a period of 3 years.  He completed training and he was awarded military occupational specialty 17B (field artillery radar crewman).  He arrived in Germany on 4 July 1978.  He was advanced to the rank/grade of private (PV2)/E-2 on 7 September 1978 and to private first class (PFC)/E-3 on  12 March 1979.

3.  On 4 April 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order and being disrespectful in language towards his superior noncommissioned officer.

4.  On 14 October 1980, the applicant was convicted by a general court-martial, pursuant to his pleas, of conspiring with another Soldier to sale Lysergic Acid Diethylamide (LSD) and of introducing 200 individual units of LSD into a military installation.  He was sentenced to a BCD, confinement at hard labor for 9 months, reduction to PV1/E-1, and a forfeiture of $300.00 pay per month for 9 months.  The convening authority approved the sentence on 16 December 1980.

5.  As a result of his court-martial sentence, the applicant was imprisoned at Fort Leavenworth, KS on 23 October 1980.

6.  On 18 March 1981, 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 affirmed the findings of guilty.  The U.S. Court of Military Review denied his petition for review on 25 June 1981.

7.  General Court-Martial Order Number 506, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, dated 17 July 1981, ordered the BCD executed.

8.  On 17 August 1981, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, as a result of court-martial with a bad conduct discharge.  He completed 2 years, 10 months, and 10 days of creditable active service.

9.  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.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established the policy and procedures for separating members with a dishonorable or a bad conduct discharge.  The regulation provided that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  It further provided that the appellate review must be completed and the affirmed sentence ordered duly executed.

11.  Paragraph 3-7b of Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  His record shows he was discharged with a BCD as a result of a duly reviewed and affirmed general court-martial conviction.  He has provided no evidence to show the type of discharge he received was in error or unjust.

2.  Records show he was over 20 years of age at the time of his court-martial conviction as a result of his acts of indiscipline and offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Based on his overall record of service, he did not serve honorably or under honorable conditions.  The BCD he received appropriately characterizes his service and is not too severe considering the nature of his offenses.

4.  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.

5.  In view of the foregoing, there is no basis for granting 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)                                         AR20110005748



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005748



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1