BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120009120 


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 to general or honorable.

2.  The applicant states, in effect, he pleaded not guilty at his court-martial and still maintains he was not guilty of the charges of which he was accused.  After his court-martial he served in a parole unit at the U.S. Disciplinary Barracks where he was told his bad conduct discharge would be upgraded to either general under honorable conditions or honorable.  It has been 33 years since he was discharged.  He has kept his record clean and maintained a steady job.

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 enlisted in the Regular Army on 13 January 1976 and held military occupational specialty 75B (Unit Clerk).  His DA Form 2-1 (Personnel Qualification Record) shows he was assigned to Germany from 11 June 1976 to 7 August 1978 and to the U.S. Disciplinary Barracks, Fort Leavenworth, KS, from 2 September 1979 to 31 October 1979.

3.  His record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 18 June 1976 for wrongfully possessing one gram of marijuana
* 7 April 1977 for being drunk and disorderly in the billets
* 20 January 1978 for failing to be at his appointed place of duty at the prescribed time

4.  His record contains a DA Form 4187 (Personnel Action), dated 15 August 1978, which shows his duty status changed from present for duty to confinement on 8 August 1978.

5.  The applicant's full court-martial packet is not available for review in this case; however, his record shows:

	a.  On 8 August 1978, he was convicted by a general court-martial of one specification of selling .03 grams of heroin.  The Court sentenced him to a bad conduct discharge, confinement at hard labor for 18 months, a forfeiture of all pay for 24 months, and a reduction to private/E-1.

	b.  General Court-Martial Order Number 88, issued by Headquarters, 3rd Armored Division, Germany, on 6 November 1978, shows the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 18 months, and forfeiture of all pay and allowances. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

	c.  General Court-Martial Order Number 483, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, on 20 September 1979, stated by action of the Secretary of the Army, dated 8 March 1979, so much of the sentence to confinement at hard labor in excess of 15 months was remitted.  The remainder of the sentence was ordered executed.  The portion of the sentence pertaining to confinement had been served, and the applicant had been placed on excess leave without pay.

6.  The applicant was discharged in accordance with his sentence by court-martial from the Army on 31 October 1979 with an under other than honorable conditions characterization of service.  His DD Form 214 (Report of Separation from Active Duty) shows he completed a total of 3 years, 1 month, and 16 days of creditable military service and had 158 days of lost time prior to his normal expiration term of service (ETS) and 179 days of lost time subsequent to his normal ETS.

7.  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.

8.  Army Regulation 635-200 (Personnel Separations) provides for the following characterization of service: 

	a.  Paragraph 3-7a states 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.

	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.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's record does not contain the complete court-martial packet, the available documents show he was convicted by a general court-martial which was warranted by the gravity of the offense charged.  The issue he raises should have been conclusively decided in the appellate process.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  Based on his overall record, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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)                                         AR20120009120





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ABCMR Record of Proceedings (cont)                                         AR20120009120



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