IN THE CASE OF:	  

		BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120004850 


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 his bad conduct discharge (BCD) be reversed or expunged.

2.  The applicant states:

* his discharge was inequitable  because it was based on one isolated incident in 18 months of service with no other adverse action
* he has never had a blemish on his record since discharge and has been a model citizen with no history of problems with the law  
* he would like to apply for aid and attendance benefits

3.  The applicant provides:

* Letter, dated 12 July 2011, from his State representative
* DA Form R-5301 (Preliminary Interview), page 1
* DA Form 26 (Record of Court-Martial Conviction)
* DD Form 214 (Report of Separation from the Armed Forces of the United States)

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 was inducted into the Army of the United States on 17 February 1955.  He completed basic training and was assigned to Fort Wayne, Detroit, MI, for advanced individual training.  The highest rank/grade he attained was private/E-2.  

3.  General Court-Martial Order Number 16, Headquarters, Fifth Army, Chicago, IL, dated 13 January 1956, shows that on 18 November 1955 the applicant pled guilty and was convicted by a general court-martial of one specification of wrongfully possessing one ounce, more or less of marijuana on or about 7 October 1955.  The court sentenced him to a BCD, forfeiture of all pay and allowances, and confinement at hard labor for two years.  

4.  On 30 November 1955, the convening authority approved the sentence of a BCD, forfeiture of all pay and allowances, and confinement at hard labor for one year, and except for that part of the sentence extending a BCD, the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

5.  On 27 February 1956, the U.S. Army Board of Military Review affirmed the approved findings of guilty and the sentence, except for that part of the sentence of confinement, which was modified to hard labor for 9 months. 

6.  A DA AGO Form R-5303 (Former Commanding Officer's Report), dated 1 February 1956, shows the following comments pertaining to the applicant from his former commander:

* he was a constant source of irritation to the officers and men of his unit
* he was a known user of marijuana and supplier of the drug to other members of the unit
* he knew he was under suspicion but made no effort to avoid use of marijuana
* he was a poor Soldier in every respect and of no value to the military service

7.  General Court-Martial Order Number 148, Headquarters, Fort Leavenworth, KS, dated 27 February 1956, which affirmed the findings, suspended the execution of his BCD until his release from confinement.

8.  The applicant was discharged on 15 July 1956.  The DD Form 214 he was issued shows he was discharged in accordance with Army Regulation 635-204 (Personnel Separations, Dishonorable and Bad Conduct Discharge) as a result of court-martial with a BCD.  The form further shows he completed 7 months and 21 days of creditable active military service and had 282 days of lost time.

9.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides guidance on characterization of service.

	a.  Paragraph 3-7a states 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states 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 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.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

10.  Army Regulation 635-204, in effect at the time, stated that an enlisted person will be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial.

11.  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 applicant's request was carefully considered and determined to lack merit.

2.  BCDs may only be given pursuant to an approved sentence of a general or special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  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 known record of misconduct (marijuana use) and absent any mitigating factors or actual facts concerning his court-martial conviction, the type of discharge directed and the reasons therefore are considered appropriate.  The applicant has failed to provide sufficient evidence to merit an upgrade of his discharge as a matter of equity.  As a result, clemency is not warranted in this case.

4.  The ABCMR does not grant discharge upgrades solely for the purpose of eligibility for veterans' benefits.

5.  Based on the foregoing, there is an insufficient evidentiary basis for granting the applicant a discharge upgrade.

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)                                         AR20120004850



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ABCMR Record of Proceedings (cont)                                         AR20120004850



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