IN THE CASE OF:	  

		BOARD DATE:	  11 October 2011

		DOCKET NUMBER:  AR20110006620 


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 his bad conduct discharge be upgraded.

2.  The applicant states:

* During his time as an active duty enlisted person he was addicted to drugs and he was an alcoholic
* He was [not] offered substance abuse counseling which would have allowed him to be a more positive and effective Soldier
* Due to the lack of treatment in the beginning stages of his addiction the disease progressively got worse which affected his ability to function
* His goal is to continue his education in sociology so he will be able to assist future enlisted personnel with behavior problems

3.  The applicant provides:

* A letter, dated 30 March 2011, from the Oklahoma Employment Security Commission
* 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's enlistment contract shows he enlisted in the Army National Guard on 17 July 1978 for a period of 6 years.  He was ordered to active duty on 3 August 1978 for training in military occupational specialty 36C (wire systems installer/operator).  On 4 November 1978, he was released from active duty.  

3.  Orders show he was ordered to active duty on 16 October 1979 for an active duty commitment of 20 months and 28 days.

4.  On 8 October 1980, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) for 5 hours on 22 September 1980.

5.  On 9 June 1981, NJP was imposed against the applicant for being AWOL from 3 June 1981 to 7 June 1981.

6.  On 6 February 1981, he was convicted by a special court-martial of wrongfully damaging a privately owned vehicle, larceny, and two specifications of AWOL (from 16 December 1980 to 31 December 1980 and 7 January 1981 to 
26 January 1981).  He was sentenced to be discharged from the service with a bad conduct discharge, to forfeit $334.00 pay per month for 5 months, to be confined at hard labor for 5 months, and reduction to E-1.  On 4 March 1981, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, forfeiture of $334.00 pay per month for 4 months, confinement at hard labor for 4 months, and reduction to E-1.  

7.  The decision of the U.S. Army Court of Military Review is not available.  However, on 10 February 1982, the convening authority ordered the bad conduct discharge to be executed, indicating the sentence was affirmed.






8.  He was discharged with a bad conduct discharge on 17 May 1982 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of court-martial.  He had served 3 years, 
6 months, and 25 days of creditable active service with 96 days of lost time.

9.  There is no evidence of record which shows he was diagnosed with drug or alcohol abuse or dependency prior to his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states that a Soldier will be given a bad conduct discharge 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.  Army Regulation 635-200, 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.  

12.  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.  

13.  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.  Although he contends he was addicted to drugs and he was an alcoholic while in the Army, no evidence shows he was diagnosed with drug or alcohol abuse or dependency prior to his discharge. 


2.  His contention he was [not] offered substance abuse counseling does not justify the misconduct for which he was convicted.  Also, there is no evidence he took steps to self-refer for drug or alcohol abuse treatment while in the Army.

3.  His record of service included one NJP, one special court-martial conviction, and 96 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

4.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

5.  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.

6.  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)                                         AR20110006620





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ABCMR Record of Proceedings (cont)                                         AR20110006620



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