IN THE CASE OF:	  . 

		BOARD DATE:	  3 January 2013

		DOCKET NUMBER:  AR20120010607 


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 served honorably in Vietnam and he has been an upstanding citizen for the past 40 years.  He has been offered employment in England and an upgrade of his characterization of service would help him acquire a work permit.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 27 April 1970 and he held military occupational specialty 71B (Clerk Typist).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  His record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 2 June 1971 for being absent from his unit without authority.

4.  On 20 November 1972, he was convicted by a general court-martial and sentenced to a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 18 months, and reduction to private (PV1)/E-1.  He was charged with:

* one specification of wrongfully introducing 864.65 grams of marijuana onto Fort Eustis, VA for the purpose of sale
* four specifications of wrongfully attempting to sell marijuana
* one specification of conspiring with another Soldier to transfer marijuana and hashish, and giving an undetermined amount of marijuana and hashish to that Soldier in order to effect the object of said conspiracy

5.  General Court-Martial Order Number 13, issued by Headquarters, U.S. Army Transportation Center, Fort Eustis, dated 8 June 1973, shows the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 12 months, forfeiture of all pay and allowances, and reduction to PV1/E-1.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  General Court-Martial Order Number 787, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 24 August 1973, stated having served the period of consignment adjudged on 20 November 1972 and promulgated in General Court-Martial Order Number 13, the applicant was restored to duty pending the completion of appellate review.  The portion of the sentence adjudging forfeitures would not apply to pay and allowances becoming due during the period commencing on the date of 24 August 1973 and terminating on the date of the order directing execution of the sentence.

7.  On an unknown date, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

8.  General Court-Martial Order Number 318, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, dated 31 March 1975, stated the portion of the sentence promulgated in General Court-Martial Order Number 13, as 

provided for a bad conduct discharge, forfeiture of all pay and allowances becoming due on or after the date of the convening authority's action, confinement at hard labor for 10 months, and reduction to PV1/E-1, adjudged had been affirmed.  The sentence as modified would be duly executed.  The portion of the sentence pertaining to confinement had been served.

9.  On 21 April 1975, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, that states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.  He completed 3 years, 11 months, and 5 days of total active service with 124 days of time lost.

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

	a.  Chapter 11, in effect at the time, prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is 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.

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 evidence of record shows the applicant was convicted by a general court-martial of several drug-related charges pursuant to the approved sentence of a general court-martial.  His trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

2.  He provided no evidence to show his discharge or the court's decision to find him guilty is unjust or as a result of improper actions.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations with due process and with no violation of his rights.

3.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for benefits or employment.  Every case is individually decided based upon its merits when an applicant requests a correction to his military records.

4.  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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

5.  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)                                         AR20120010607



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ABCMR Record of Proceedings (cont)                                         AR20120010607



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