IN THE CASE OF:	  

		BOARD DATE:	  23 May 2012

		DOCKET NUMBER:  AR20110022620 


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 a general discharge.

2.  The applicant states that through the foolishness of his youth he was in the company of a Soldier who committed a crime.  He did not commit the crime and he has regretted this error since 1973.  He further states that he has lived with the shame of his discharge and feared it might be revealed to his family.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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 with a moral waiver on 31 August 1971 for a period of 3 years and training as a medical corpsman.  He completed his basic training at Fort Lewis, WA and he was transferred to Fort Sam Houston, TX to undergo his advanced individual training (AIT).

3.  On 6 January 1972, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against him for being absent from his unit on 3 January 1972.

4.  He completed his AIT and on 9 February 1972 he was transferred to Darmstadt, Germany for assignment to a medical company.
5.  On 27 July 1972, NJP was imposed against him for misappropriating an ambulance.

6.  On 13 September 1972, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty and being disrespectful in language towards a superior noncommissioned officer.

7.  On 21 June 1973, NJP was imposed against him for wearing an unauthorized badge (Expert Field Medical Badge).

8.  On 20 July 1973, he was convicted pursuant to his plea by a special court-martial of four specifications of assault.  (The applicant put lysergic acid diethylamide (LSD) in the orderly room coffee pot and four individuals became ill.)  He was sentenced to confinement at hard labor for 5 months, a forfeiture of $200.00 pay per month for 5 months, and a BCD.

9.  During the applicant’s clemency and parole hearing he admitted he was strung out on narcotics and he wanted to get even with his commander and other enlisted men for things that had happened in the unit, so he put the LSD in the coffee pot.  He also indicated he had been using drugs since the age of 15.

10.  On 23 November 1973, the applicant was transferred to Fort Lewis and restored to duty pending the appellate review of his court-martial conviction.

11.  On 15 March 1974, orders were published at Fort Lewis indicating the findings and sentence as approved by the convening authority had been approved and directed his discharge be executed.


12.  Accordingly, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction on 3 April 1974.  He had served 2 years, 2 months, and 27 days of total active service with 126 days of time lost due to confinement.

13.  On 30 September 1974, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that his discharge should be upgraded because he was under the influence of LSD at the time and he was not responsible for his actions.  On 30 December 1974, after reviewing all of the available records and evidence in his case, the ADRB determined that his 
discharge was both proper and equitable under the circumstances and voted to deny his appeal 
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.

15.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.  

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

2.  The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense.

3.  Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.

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 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.

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)                                         AR20110022620



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ABCMR Record of Proceedings (cont)                                         AR20110022620



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