IN THE CASE OF:	  

		BOARD DATE:  18 April 2012

		DOCKET NUMBER:  AR20110019809 


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 upgrade of his bad conduct discharge (BCD) to an honorable discharge.  

2.  He states:

* his character of discharge should have been changed to honorable based on a program authorized when Jimmy Carter was President
* he doesn’t know why there was an error
* there is no copy of this change of policy in his file 

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 21 October 1968 and he was honorably discharged on 18 May 1970 for immediate reenlistment.  He reenlisted on 19 May 1970.  He served in Vietnam from 13 August 1970 to 8 August 1971.  

3.  On 11 May 1971, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to obey a lawful order.  

4.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 8 to 13 August 1972.  His service record does not indicate he received nonjudicial punishment for this period of AWOL.   

5.  On 4 October 1972, he was found guilty pursuant to his pleas by a special court-martial of wrongfully selling heroin and wrongfully having in his possession 3 grams, more or less of heroin.  He was sentenced to a BCD, confinement at hard labor for 180 days, and forfeiture of $192.00 pay per month for 6 months.

6.  On 22 November 1972, the convening authority approved only so much of the sentence as provided for a BCD.  

7.  On 29 December 1972, the U.S. Army Court of Military Review affirmed the findings of guilty.

8.  On 7 March 1973, his BCD was ordered executed in Special Court-Martial Order Number 37, Headquarters, 1st Cavalry Division, Fort Hood, TX.

9.  He was discharged on 21 November 1973 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11 by reason of other than desertion (court-martial).  He completed a total of 4 years, 11 months, and 20 days total active military service with 42 days of lost time.

10.  His service record does not indicate he applied to the Army Discharge Review Board (ADRB) to upgrade his discharge under the provisions of the Department of Defense (DOD) Special Discharge Review Board (SDRP).   



11.  Army Regulation 635-200 sets forth the basic authority for 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.
   
   c.  Paragraph 3-11 states that a Soldier will be given a BCD 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.
   
12.  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.

13.  The DOD SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.”  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The Army Discharge Review Board had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused from completing alternate service in accordance with PP (Presidential Proclamation) 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civilian law.

14.  Public Law 95-126 provided in pertinent part for a “Relook Program.”  All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards.  Two of the principal features of Public Law 95-126 were: 
(1)  the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits.  Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2)  prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding upgrade of his discharge to honorable based on a program authorized when Jimmy Carter was President are acknowledged.  It appears he may be referring to the DOD SDRP or "Carter Program."  However, his service record is void of evidence which indicates he applied to the ADRB for an upgrade of his discharge under the provisions of this program.  

2.  He was convicted by a special court-martial on 4 October 1972 of wrongfully selling heroin and wrongfully having in his possession 3 grams, more or less of heroin.  Had he applied to the ADRB, his conviction and discharge for sale and possession of heroin, a crime also under civilian law, would have been a compelling reason to deny an upgrade in his characterization of service.

3.  His trial by court-martial was warranted by the gravity of the offenses charged.  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.

4.  Based on the seriousness of the misconduct for which he was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting his 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)                                         AR20110019809





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ABCMR Record of Proceedings (cont)                                         AR20110019809



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