BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120008583 


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 dishonorable discharge.  

2.  The applicant states, in effect, his commander initiated action to discharge him under the provisions of paragraph 13-5a(3)b, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for unfitness.  He signed an 
AE Form 113-2 (Respondent’s Election of Rights), on 10 January 1975, due to unfitness.  On 27 January 1975, the separation authority directed that he be discharged for unfitness and issued a General Discharge Certificate.  While he was waiting to be transferred to the servicing medical treatment facility at Walter Reed Medical Center, he was arrested for possession of drugs, court-martialed, sentenced to 33 months of hard labor, and he received a dishonorable discharge.  Pursuant to Army regulations, the Uniform Code of Military Justice (UCMJ), and other relevant statutes, he claims he could only receive one discharge for the same enlistment period and could not have received a punitive discharge over a more favorable discharge if the discharges were pending simultaneously.  He further states, after suffering 37 years of shame, humiliation, and denial of benefits he believes he was entitled to receive, he requests a personal appearance before the Board.  He further requests that the Board grant him an honorable discharge as compensation for this miscarriage of justice. 

3.  The applicant provides:

* a self-authored statement
* AE Form 113-1 (Notice of Elimination Proceedings)

* AE Form 113-2 
* 3 memoranda

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 record shows he enlisted in the Regular Army on 31 October 1973.  He completed training and was awarded military occupational specialty 76Y (Unit Organization Supply Specialist and Armorer).  The highest rank/pay grade he attained during his military service was private/E-2.  However, he held the rank/grade of private/E-1 at the time of discharge.

3.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article15, UCMJ on:

* 29 August 1974, for failing to go to his appointed place of duty
* 11 November 1974, for stealing a ride on the Strassenbahn, disobeying a lawful order, and for failing to go to his appointed place of duty twice
* 4 February 1975, for using disrespectful language towards his superior noncommissioned officer

4.  On 8 January 1975, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 for unfitness due to drug abuse.  The immediate commander requested a waiver of any further requirements for counseling or a rehabilitative transfer because prior attempts at rehabilitation had failed and the applicant was obviously resisting all attempts to be rehabilitated.  



5.  On 10 January 1975, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unfitness.  The applicant waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He further elected not to submit a statement on his own behalf.  In conjunction with his counseling, he acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if he was issued less than a fully honorable discharge.

6.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the provisions of chapter 13 of Army Regulation 635-200.  

7.  On 15 January 1975, his intermediate commander recommended approval and on 27 January 1975, the separation authority approved the applicant's discharge under the provisions of chapter 13 of Army Regulation 635-200 and ordered the issuance of a General Discharge Certificate. 

8.  His records show the applicant received the following court-martial conviction:

   a.  General Court-Martial Order Number 43, issued by Headquarters, 1st Support Brigade, dated 27 May 1975, shows on 14 April 1975, the applicant pled  guilty and he was found guilty of Article 92 of the UCMJ of wrongfully possessing one hypodermic needle and one syringe; of violating Article 122 of the UCMJ for stealing from an individual against her will, by means of force and violence, a purse and Deutsche Marks of a value of $25.00; and of violating Article 134 of the UCMJ by wrongfully possessing a controlled substance on 19 February 1975, of morphine and barbituric acid, and for wrongfully possessing a habit forming narcotic drug, to wit:  Morphine, on 21 February 1975.  On 9 May 1975, the following sentence was adjudged:

* a forfeiture of all pay and allowances
* to be dishonorably discharged from the service
* to be confined at hard labor for 6 years
   
   b.  General Court-Martial Order Number 65, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 22 January 1976, shows the sentence to a dishonorable discharge, a forfeiture of all pay and allowances becoming due on and after the convening authority's action, and confinement at hard labor for 33 months, adjudged 9 May 1975, as promulgated in General Court-Martial Order Number 43, dated 27 May 1975, was affirmed pursuant to Article 66.  The provisions of Article 71(c) having been complied with, the sentence was duly executed.  
9.  On 8 April 1976, the applicant was discharged from the Army.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 11, Army Regulation 635-200, as a result of court-martial, with a dishonorable discharge.  This form further shows he completed a total of 1 year, 3 months, and 13 days of creditable military service and he had 415 days of lost time.

10.  The applicant provides historical documentation pertaining to his approved request for discharge under the provisions of chapter 13, Army Regulation      635-200.

11.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  It 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army.  Chapter 2, Section IV contains guidance on hearings and disposition of applications.  It states applicants do not have a right to a hearing before the ABCMR.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has requested to personally appear before the ABCMR, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance.  As a matter of information, formal hearings and personal appearance before the ABCMR is not a right and is only necessary when it is determined by the Director of ABCMR to be necessary in the interest of justice.  

2.  The applicant's contention that his dishonorable discharge should be upgraded has been carefully considered.  However, there is insufficient evidence to support this claim.

3.  The applicant contends he could only receive one discharge for the same enlistment period.  However, the evidence clearly shows the applicant had not been discharged prior to his arrest for wrongful possession of drugs and subsequent to conviction by court-martial.  

4.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations.

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 the applicant's undistinguished record of service and absent any mitigating factors the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120008583



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ABCMR Record of Proceedings (cont)                                         AR20120008583



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