IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120003795 


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, in effect, an upgrade of his bad conduct discharge and that he should be found innocent of the charges against him.

2.  The applicant states he feels the Board should find him innocent because, during his trial, Mr. W----n's testimony denied he was the person who sold the drugs.  Additionally, the actions taken by the prosecuting attorney, Captain (CPT) H-----d, violated his rights.  The prosecuting attorney did not allow the testimony of his appointed Army attorney, Major (MAJ) S-----n, which was critical and crucial because he interviewed the criminal investigator.  He feels his company commander's actions were prejudiced and violated his rights because he was treated as if he were guilty, rather than innocent until proven guilty.

3.  The applicant provides:

* Self-authored statement to the Board
* A self-authored letter through the commander, Headquarters and Headquarters Company (HHC), 7th Engineer Battalion to the commander,
7th Engineer Battalion, Fort Polk, LA, dated 25 April 1980
* A self-authored letter to MAJ S-----n, dated 29 October 1982
* Special Court-Martial Order Number 14, issued by Headquarters,
5th Infantry Division, Fort Polk, dated 24 February 1983

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 13 April 1977.  He held military occupational specialty 75B (Personnel Administrative Specialist).  He was assigned to Company E, 7th Engineer Battalion, Fort Polk, from 8 September 1977 to 7 March 1983.  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  He provided a letter, dated 25 April 1980, wherein he stated:

	a.  On 29 February 1980 he was directed, on the HHC commander's orders, to report to the commander, 7th Engineer Battalion, in front of the assembled battalion and battalion staff.  When he reported, as if receiving an award at a special ceremony, he was ordered to do an about face and he was handcuffed by military police and Criminal Investigation Command (CID) agents.  During this time the HHC commander stated he would make an example of him and the three other individuals the HHC commander had also called up for public humiliation.

	b.  On the same day as his arrest, he was restricted to the limits of the battalion area, place of duty, mess hall, main chapel, and billets.  If he had to leave the battalion area, such as going to the chapel, he was required to have an escort.  From 1600 hours to 2200 hours on duty days, and from 0800 to 2200 hours on weekends and holidays, he was required to sign in every 2 hours.  On 22 March 1980, he was 10 minutes late signing in and he was immediately placed under arrest in quarters.

	c.  As a result of his restriction and subsequent arrest, he has been forcibly separated from his wife and three children.  He has seen his wife for 10 minutes 

since he was arrested and then only with the intervention of the chaplain and the presence of a sergeant.  Additionally, he missed six meals due to his unit failing to provide an escort to the mess hall.  There were several other occasions when he would have missed meals if not for his own efforts to obtain an escort.

	d.  After three days of trying, he managed to see his attorney, MAJ S-----n, and made a complaint to MAJ W----r at the Inspector General's office, who confirmed his situation.  In spite of MAJ W----r's efforts, he missed another meal and on one occasion he was taken to the mess hall after the serving lines had closed and he was only able to obtain two eggs and a glass of juice.

4.  On 23 July 1980, he was convicted by a special court-martial of one specification each of wrongfully possessing, transferring, and selling marijuana.  The Court sentenced him to a bad conduct discharge, forfeiture of $299.00 pay per month for 3 months, and reduction to private (PV1)/E-1.  The convening authority approved his sentence on 25 November 1980.

5.  On 29 September 1982, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

6.  His record does not contain evidence to show he petitioned the U.S. Military Court of Appeals to review his case.

7.  He provided a letter to MAJ S-----n, dated 29 October 1982, wherein he stated he had been waiting on the court's decision for a long time and when it finally arrived he found it to be unjust.  He states CPT H-----d kept MAJ S-----n from testifying in his behalf and that made his case illegal.  He asked MAJ S-----n to write a letter outlining the details of an interview that would help to clear his name.

8.  Special Court-Martial Order Number 14, dated 24 February 1983, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge be duly executed.

9.  Accordingly, on 7 March 1983, the applicant was discharged from active duty in the rank/grade of PV1/E-1 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial with a bad conduct discharge.  He completed 5 years, 10 months, and
25 days of creditable active service.

10.  There is no evidence he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

	b.  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.

	c.  Paragraph 3-7b states 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a special court-martial of one specification each of wrongfully possessing, transferring, and selling marijuana.  He was discharged on 7 March 1983 pursuant to the approved sentence of a special court-martial.  His trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

2.  He provided no evidence to show his discharge or the court's decision to find him guilty is unjust or as a result of improper actions.  There is no error or 

injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded or be found innocent of the charges.  He was properly discharged in accordance with pertinent regulations with due process and with no violation of his rights.

3.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge.

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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.  In view of the circumstances in this case, he is not entitled to an upgrade of his discharge or new verdict.

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)                                         AR20120003795



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ABCMR Record of Proceedings (cont)                                         AR20120003795



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