IN THE CASE OF:	  

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120007937 


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 to an honorable or a general discharge.

2.  The applicant states his prior service should have been given more consideration.

3.  The applicant provides:

* His DD Form 214 (Report of Separation from Active Duty) for the period ending 24 May 1978
* His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 May 1981

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not provide additional evidence or argument.

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 21 June 1974.  He completed training and he was awarded military occupational specialty 19E (M48-M60A1/A3 Armor Crewman).  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 1 April 1978.  On 24 May 1978, he was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 he was issued at the time shows he was awarded the National Defense Service Medal and the Army Good Conduct Medal. (1st Award).

3.  On 25 May 1978, he reenlisted for a period of 4 years.

4.  On 15 November 1979, contrary to his plea, the applicant was found guilty by a general court-martial of violating a lawful general regulation by wrongfully having in his possession 43 tablets of lysergic acid diethylamide (LSD).

5.  He was sentenced to forfeit all pay and allowances, confinement at hard labor for 1 year, a bad conduct discharge, and reduction to private (PV1)/E-1.  On 9 January 1992, the sentence was approved.  However, the portion of the sentence in excess of a bad conduct discharge, confinement at hard labor for
12 days, forfeiture of $250.00 pay per months for 6 months, and reduction to PV1/E-1 was suspended for 6 months.

6.  On 15 April 1981, the sentence having been affirmed and the provisions of Article 71c having been complied with, the sentence was ordered to be executed.

7.  Accordingly, on 4 May 1981, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) chapter 11, as a result of court-martial, with a bad conduct discharge.

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

	a.  Paragraph 3-10 provides that 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 affirmed sentence ordered 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 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.

9.  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 for an upgrade of his bad conduct discharge has been carefully considered.

2.  The trial by court-martial was warranted by the gravity of the offense charged. His conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which he was convicted.

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 seriousness of his criminal offense and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  His prior service conduct and accomplishments are reflected on his DD Form 214 for the period ending 24 May 1978 that shows he was honorably discharged in the rank/grade of SGT/E-5 after serving 3 years, 11 months, and 4 days of active service.  However, his record shows that subsequent to his reenlistment his record of indiscipline as a noncommissioned officer includes a violation of a 

lawful general regulation by wrongfully having in his possession 43 tablets of LSD.  Based on his misconduct during this period of service, it clearly did not meet the standards of acceptable conduct for Army personnel.  Therefore, this misconduct rendered his service for this period of service as unsatisfactory.

5.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge for his period of service ending on 4 May 1981.

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)                                         AR20120007937



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ABCMR Record of Proceedings (cont)                                         AR20120007937



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