IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110014788 


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 that his bad conduct discharge be upgraded to honorable.

2.  The applicant states he was immature at the time in regard to his responsibilities and military duties.  He contends that he has grown to appreciate the time he spent in the military and would like his discharge to reflect his pride in the service.

3.  The applicant provides no additional evidence.

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 7 November 1979 and upon completion of initial entry training was awarded military occupational specialty 91B (Medical Specialist).  He was promoted to the rank of specialist four/E-4 on 
1 May 1981.

3.  On 5 October 1981, he was convicted, in accordance with his pleas, by a special court-martial of wrongfully:

* selling 26 phenobarbital tablets
* possessing 26 phenobarbital tablets
* transferring 26 phenobarbital tablets
* stealing 26 phenobarbital tablets

4.  He was sentenced to serve 3 months in confinement, reduction to the rank of private/E-1, and the issuance of a bad conduct discharge.  On 17 November 1981, the sentenced was approved

5.  On 22 March 1982, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 27 September 1982, the sentence was affirmed on appeal and ordered executed.

7.  Accordingly, he was discharged on 28 October 1982 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial with a bad conduct discharge.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

9.  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.

10.  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.  

11.  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 request for an upgrade of his discharge has been carefully considered.

2.  He contends that he was immature at the time; however, he completed initial entry training.  This shows he was mature enough to satisfactorily serve.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

3.  The trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which he was convicted.

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 seriousness of his criminal offenses and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.

5.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.  Additionally, he has not presented evidence of post-service conduct sufficient to warrant an upgrade as a matter of equity.   

6.  In view of the above, 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)                                         AR20110014788



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ABCMR Record of Proceedings (cont)                                         AR20110014788



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