IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120009442 


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 a general discharge.

2.  The applicant states he fulfilled his 4-year contract faithfully.  He was placed on excess leave for investigation purposes only and he was then given a bad conduct discharge.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Medical document

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 for 4 years on 20 May 1980 and he held military occupational specialty 74D (Computer Machine Operator).  He served in Germany from October 1980 to October 1982.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Army Achievement Medal, and Army Good Conduct Medal.

3.  It appears he may have been held past his normal expiration term of service (19 May 1984) pending criminal investigation into activities that occurred on      30 April 1984. 

4.  On 18 July 1984, he was convicted by a special court-martial of one specification of wrongfully possessing with intent to distribute, on or about 30 April 1984, cocaine.  The Court sentenced him to confinement at hard labor for 3 months, a forfeiture of $397.00 pay for 3 months, a reduction to private (PV1)/E-1, and a bad conduct discharge.

5.  On 21 September 1984, the convening authority approved the sentence, and except for the bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 5 November 1984, the applicant requested to be placed on voluntary excess leave pending completion of the appellate review.  He acknowledged he understood his request for voluntary excess leave may be terminated and he would be placed on involuntary excess leave.  

7.  On 13 November 1984, his immediate commander recommended approval of the applicant's request for excess leave but indicated the applicant had no desire to participate in nor was he a good prospect for the Commanding General's Clemency Program. 

8.  On 26 November 1984, the convening authority disapproved the applicant's request for voluntary excess leave.  However, he was placed on involuntary excess leave.  

9.  On 29 November 1984, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  There is no indication he petitioned the U.S. Court of Appeals for the Armed Forces for a review of her case.

11.  Special Court-Martial Order Number 35, issued by Headquarters, Fort Bragg, NC, on 10 April 1985, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

12.  On 30 August 1985, the applicant was discharged from the Army with a bad conduct discharge.  His DD Form 214 shows he completed 5 years and 4 days of creditable active service with time lost from 18 July to 24 October 1984.

13.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

14.  He submits a medical document, dated 27 May 2009, that shows he has a history of lower back and leg pain.

15.  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.

16.  Army Regulation 635-200 (Personnel Separations) provides in:

	a.  Paragraph 3-7a 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 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.  The applicant was convicted by a special court-martial that was warranted by the gravity of the offense charged at the time.  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.  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.

2.  While awaiting an appellate review of his case, he applied for voluntary excess leave.  At that time, the applicant's commander indicated the applicant was not a good candidate for the clemency program.  Accordingly, the convening authority disapproved the voluntary excess leave and placed him on involuntary excess leave. 

3.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected. 

4.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general 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)                                         AR20120009442



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120009442



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1