IN THE CASE OF:	  

		BOARD DATE:  12 July 2012

		DOCKET NUMBER:  AR20120001119 


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 (BCD) be upgraded to at least a general discharge.

2.  The applicant states that there was an injustice levied against him during the court-martial because the entire body of evidence against him was circumstantial at best and he was not well represented.  He goes on to state that he feels he had re-paid the heavy price and cost of having endured an unjust discharge.  He also states that he was by all accounts a young person at the time of the injustice and alleged infraction and served 6 years in an honorable fashion.

3.  The applicant provides a one-page statement explaining his discharge and a copy of his DD Form 214 (Certificate of Release or Discharge 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 was born on 23 December 1955 and enlisted in the U.S. Army Reserve (USAR) with a moral waiver on 22 August 1975 for a period of 6 years and training as a dental specialist.  His offenses requiring a moral waiver were arrests for assault and possession of marijuana, speeding, and parking tickets. 

3.  He completed his initial active duty for training as a dental specialist at Fort Sam Houston, Texas, and was returned to his USAR unit. 

4.  On 31 May 1977, he enlisted in the Regular Army for a period of 4 years and assignment to Fort Jackson, South Carolina.  

5.  On 3 February 1978, nonjudicial punishment (NJP) was imposed against him for speeding and for failure to go to his place of duty. 

6.  On 26 February 1979, he was convicted by a special court-martial of failure to yield to emergency equipment.  He was operating a motor vehicle on post after having received a letter of revocation of post driving privileges.  He was sentenced to reduction to the pay grade of E-2, a forfeiture of $50.00 for 2 months, and extra duty for 30 days. 

7.  On 18 March 1980, he was transferred to Panama and on 5 October 1981 he was convicted by a special court-martial at Fort Clayton, Panama, of the wrongful sale and transfer of 964.0 grams of marijuana.  He was sentenced to a BCD and was transferred to Fort Bragg, North Carolina, pending the appellate review of his court-martial conviction.

8.  On 11 December 1981, NJP was imposed against him for failure to go to his place of duty.  On 28 December 1981, he was placed on involuntary excess leave.

9.  On 23 November 1982, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

10.  On 7 July 1983, he was discharged pursuant to a duly affirmed court-martial conviction.  He was credited with 6 years, 1 month, and 5 days of active service. 

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

12.  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

13.  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.  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 facts of the case.

2.  The applicant’s contentions were considered.  However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offense.

3.  The applicant’s court-martial was reviewed by the appropriate appellate authority and found to be legally sufficient to support the findings and sentence as approved by the convening authority.

4.  Accordingly, his punishment was not disproportionate to the offense 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.  







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)                                         AR20120001119





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ABCMR Record of Proceedings (cont)                                         AR20120001119



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