IN THE CASE OF:	  

		BOARD DATE:	1 December 2011

		DOCKET NUMBER:  AR20110009721


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.

2.  The applicant states:

* he made a mistake that he has been paying for his whole life
* he supports the military 100 percent – he comes from a family who has served and continues to serve
* it's hard for him to explain to family members why he cannot receive veterans' benefits
* he gave the Army 100 percent during his service
* he is proud of his country and his service – he just needs some help

3.  The applicant provides his DD Form 214 (Report of Separation 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 enlisted in the Regular Army on 30 September 1974.  He completed training and was awarded military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  Records show the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for the offenses indicated:

* on 1 September 1975, for absenting himself without authority from his appointed place of duty on 26 August 1975
* on 25 September 1975, for absenting himself without authority from his appointed place of duty and for wrongfully using provoking words and gestures on 18 September 1975

4.  At a special court-martial at Fort Bragg, NC:

	a.  he pled guilty to multiple specifications of a single charge as follows:

* two specifications of wrongful possession of marijuana
* two specifications of wrongful transfer of marijuana
* four specifications of wrongful use of marijuana

	b.  the military judge entered a plea of not guilty to a single specification of wrongful use of marijuana.

5.  On 5 April 1977, the court found him guilty of seven specifications of the single charge and not guilty of a single specification of the charge.  The court sentenced him to a bad conduct discharge, confinement at hard labor for 85 days, forfeiture of $200.00 per month for 4 months, and reduction to the rank/grade of private/E-1.

6.  On 19 May 1977, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed.  The applicant was remanded for confinement at the U.S. Disciplinary Barracks, Fort Leavenworth, KS.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

7.  On 21 November 1977, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  Special Court-Martial Order Number 35, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, dated 13 March 1978, shows the bad conduct discharge was ordered executed after completion of all required post-trial and appellate reviews.

9.  On 23 April 1979, he was discharged in accordance with the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11.  Item  9e (Character of Service) of his DD Form 214 shows he was discharged with an under other than honorable conditions character of service.  His DD Form 214 further shows he completed a total of 4 years, 4 months, and 14 days of creditable military service.

10.  On 31 December 1984, the Army Discharge Review Board reviewed his request for an upgrade of his bad conduct discharge and determined his discharge was proper and equitable and his request lacked sufficient evidence to warrant relief.

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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

13.  Army Regulation 635-200, paragraph 11-2, in effect at the time, provided that a Soldier would 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.

14.  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 was given a bad conduct discharge pursuant to an approved sentence of a special court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

2.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction 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.  In view of the foregoing, there is insufficient basis to grant 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 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20110009721



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