IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110017791 


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:

	a.  he believes he has been punished a long time;

	b.  the time that has elapsed since he received his BCD is justice served; and

	c. he is getting older now and needs medical care.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 3 June 1982.  He was trained and served in military occupational specialties 52D (Power Generation Equipment Repairer), 16T (Patriot Missile Crewmember), and 16B (HERCULES Missile Crewmember).

3.  Item 18 (Appointments & Reductions) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was advanced to the rank/grade of specialist four (SP4)/E-4 on 1 January 1984, which is the highest rank/grade he attained while serving on active duty.  It also documents his final reduction to private (PV1)/E-1 on 28 October 1987.

4.  General Court Martial (GCM) Order Number 42, issued by Headquarters,
21st Support Command, Germany, dated 7 May 1987, shows the applicant was found guilty of violating Article 112a (2 specifications) of the Uniform Code of Military Justice (UCMJ) for:

* wrongfully distributing .157 grams of heroin, methaqualone, a Phenobarbital on or about 1 October 1986
* wrongfully distributing .412 grams of heroin on or about 8 October 1986

5.  The resultant sentence imposed by the military judge was a BCD, confinement for 12 months, forfeiture of $300.00 pay per month for 6 months, and reduction to PV1/E-1.  The Court-Martial Convening Authority approved the sentence and ordered that it be executed with the exception of the portion that provided for the BCD.

6.  On 11 December 1987, the U.S. Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact, and affirmed the findings of guilty and the sentence.

7.  On 22 June 1988, GCM Order Number 380, issued by the U.S. Army Correctional Activity, Fort Riley, KS, directed that, Article 71c of the UCMJ having been complied with, the BCD portion of the sentence be duly executed.

8.  On 11 July 1988, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows that he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), section IV, as a result of court-martial.  He completed 5 years,
4 months, and 8 days of creditable active military service with 271 days of time lost.

9.  On 1 June 2011, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his BCD.  However, on 1 July 2011, his application was returned without action since his request exceeded that board's 15-year statute of limitations.  He was advised to apply to this Board for consideration.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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 contends the BCD punishment and length of time since its receipt is justice served and forms the basis to upgrade his BCD.

2.  The applicant committed misconduct for which a BCD was warranted.  He was appropriately discharged after completion of the appellate process and only 

after his sentence was affirmed by the appropriate appellate court.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110017791



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ABCMR Record of Proceedings (cont)                                         AR20110017791



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