IN THE CASE OF:

		BOARD DATE:  3 January 2012

		DOCKET NUMBER:  AR20110012459 


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 (BCD).

2.  The applicant states he was initially charged with possession of an ounce of heroin, but it was only a gram.  The charges were dropped but refilled on his separation date.  He was held in the stockade.  He was a Soldier for three years.  He had a couple of alcohol-related incidents but he wasn't a bad Soldier.    On guard duty he had three ten-dollar bags of heroin in his possession.  The heroin was confiscated.  He was not locked up.  He promised his commanding officer he was experimenting and it wouldn't happen again.  About six months to a year later he cleared post and was proceeding to the transfer point when he stopped in the company area to say good bye to the commanding officer and first sergeant.  They informed him the old charges had been reopened.  They wanted him to come back in the Army after the court-martial to make up the bad time.  He said no.  That was his mistake.  He requests help now.  He is a patriot and loves his country.  He is old and sick.
 
3.  The applicant did not provide any additional documentation.

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 17 February 1972.  He completed training as unit supply specialist and was assigned to Fort Benning, GA.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: 

* 5 January 1973 for failure to go to his appointed place of duty
* 6 April 1973 for being absent without leave (AWOL) 
* 11 December 1973 for AWOL and missing movement 

4.  On 27 September 1973, a special court-martial tried the applicant on the following charges:

* Charge 1 –five specifications of failure to go to his appointed place of duty 
* Charge 2 – two specifications of failure to obey a lawful order
* Charge 3 – two specifications of wrongfully communicating a threat and one specification of disorderly conduct, using profanity, and failure to cooperate while in custody of the Military police. 
* Additional  Charge – one specification of AWOL

5.  The applicant pled guilty to charge 1, not guilty to charges 2, 3, and the additional charge.  The court found the applicant guilty of charge 1 and not guilty of charges 2, 3, and the additional charge.  The military judge sentenced him to a forfeiture of $100 pay for 5 months and restriction to his company area for 
45 days.  The convening authority approved the sentence on 5 October 1973.

6.  In a 16 August 1974 special court-martial he pled guilty, and was found guilty, of wrongful possession of one ounce or more of heroin.  The military judge sentenced him to a BCD, forfeiture of $50 pay for 3 months, and confinement at hard labor for 60 days.

7.  The convening authority approved sentence, and deferred the confinement at hard labor and forfeiture of pay until such time as the sentence to confinement at hard labor was ordered into execution. 

8.  There is no available record of the review or appeal available in his records.
 
9.  Special Court-Martial Order Number 96, Headquarters, U.S. Army Infantry Center, Fort Benning, GA, dated 11 October 1974, announced the findings and sentence were affirmed.  Article 71(c) of the UCMJ having been complied with, the BCD was ordered executed.  The unexecuted portion of the sentence pertaining to confinement and forfeiture was remitted.

10.  The applicant's DD Form 214 shows that he was discharged on 15 January 1975 under the provisions of Army Regulation 635-200, chapter 11.  He received an under other than honorable conditions characterization of service.

11.  On 14 April 1986, the Army Discharge Review Board denied his request to upgrade his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b states 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.  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 convicted by a special court-martial which was warranted by the gravity of the offense charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  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.

2.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

3.  While it is recognized that the applicant may have medical needs, discharges are not upgraded solely for the purpose of establishing eligibility for benefits from other agencies.

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)                                         AR20110008358



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ABCMR Record of Proceedings (cont)                                         AR20110012459



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