BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120004433 


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) to an honorable discharge.

2.  The applicant states the person who turned him in was the same person who was "busted and made up stuff on [him] and others to get out of his bust."

3.  The applicant provides no additional evidence.

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's military record shows he enlisted in the Regular Army in pay grade E-1 on 16 January 1969 for 3 years.  He completed training and he was awarded military occupational specialty 67Y (AH-1G Helicopter Repairman).  He served in Vietnam from 28 July 1969 through 27 July 1970.  He was promoted to pay grade E-5 on 15 April 1971.

3.  A DD Form 458 (Charge Sheet), dated 28 July 1971, was prepared by the Commander, Troop D, 4th Squadron, 12th Cavalry, Fort Carson, CO, showing the applicant was charged with one specification of wrongfully dispersing by selling to another Soldier a controlled drug (amphetamine) on or about 21 July 1971.

4.  On 17 August 1971 after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged that although he was furnished legal advice, the decision was his own.  He further acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 17 August 1971, the applicant's troop commander recommended disapproval of the applicant's request.  The troop commander stated the seriousness of the charges against the applicant were of such a nature not to warrant a discharge for the good of the service.  The transfer of controlled drugs in an aviation unit where numerous lives depended on the safe maintenance and operation of organic helicopters created an extreme hazard.

6.  On 17 August 1971, the applicant's division commander concurred completely with the troop commander's recommendation and comments concerning the serious nature of the offense.

7.  On 27 September 1971, he was convicted by a general court-martial of one specification of knowingly and wrongfully dispersing a controlled drug (amphetamine).  He was sentenced to reduction to pay grade E-1, forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a BCD.

8.  On 6 October 1971, the State of Colorado charged him with dispensing a dangerous drug.

9.  A memorandum from Headquarters, 1st Squadron, 10th Cavalry, 4th Infantry Division (Mechanized), Fort Carson, dated 31 January 1972, noted the applicant was convicted by a civil court of illegally dispensing a dangerous drug and sentenced on 5 November 1971.

10.  Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, General Court-Martial Order (GCMO) Number 33, dated 5 May 1972, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD duly executed.

11.  On 13 October 1972, the convening authority remitted the unexecuted portion of the sentence to confinement at hard labor.

12.  There is no indication he petitioned the U.S. Court of Military Appeals for a review of his discharge.

13.  A DA Form 2496 (Disposition Form), dated 14 March 1983, stated, in part:

	a.  The enclosed file indicated the applicant was convicted by civil authorities for either the same offense or one very similar to that for which he was court-martialed and he was sentenced by the civil authorities on 5 November 1971.  Thus, it was likely that he was never sent to the U.S. Disciplinary Barracks because he was already in the hands of civil authorities.

	b.  The BCD could not have been executed before completion of appellate review.  The GCMO Number 33 issued by Headquarters, Fort Carson, on 5 May 1972 affirmed the findings of guilty and the sentence as promulgated in GCMO Number 116, dated 5 November 1971.  That was the prerequisite for executing the BCD and, if it had not been executed, the Commander, Headquarters, Fort Carson, could now do so.

14.  On 31 March 1983, the Assistant Secretary of the Army for Manpower and Reserve Affairs determined that GCMO Number 33 affirmed the findings of guilty and the sentence.  The case was forwarded to Fort Carson to execute the BCD.

15.  He was discharged accordingly in pay grade E-1 on 10 August 1984 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial with a BCD.  He was credited with 2 years, 9 months, and 19 days of net active service with time lost from 5 November 1971 through 19 August 1984.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11, in effect at the time, stated an enlisted Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review had to be completed and the sentence affirmed before it could be duly executed.

17.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge is a separation with honor.  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 inappropriate.

18.  Army Regulation 635-200, 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.

19.  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 change a court-martial 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 that upon receipt of the court-martial charges, the applicant voluntarily requested discharge in lieu of trial by court-martial.  His troop commander recommended disapproval of his request.  He stated the seriousness of the charges against the applicant were of such a nature as not to warrant a discharge for the good of the service.  He also stated that the transfer of controlled drugs in an aviation unit where numerous lives depended on the safe maintenance and operation of organic helicopters created an extreme hazard.

2.  On 25 September 1971, the applicant was convicted by a general court-martial of wrongfully dispensing a controlled drug to another Soldier.  His sentence was approved on 5 November 1971.  His sentence and conviction were affirmed and the BCD was ordered executed.  However, the BCD was not executed.  On 14 March 1983, it was determined that the BCD could be executed.  He was subsequently discharged pursuant to the sentence of a general court-martial and he was issued a BCD.

3.  His contentions have been noted and found to be without merit.  He provided no evidence to show his discharge is unjust.  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 to an honorable or a general discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.

4.  The 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.

5.  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 his offenses and absent any mitigating factors, the type of discharge directed and the reasons 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 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)                                         AR20120004433



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120004433



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1