BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120012931 


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, in effect, he believes:

* had been reassigned to a different command he would not have gotten into trouble; he would have fulfilled his enlistment obligation
* his punishment was too harsh
* he should have been offered a general discharge

3.  The applicant provides:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* Four character reference letters
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* General Court-Martial Orders Number 371
* DA Form 2-1 (Personnel Qualification Record)
* DA Form 2-2 (Insert Sheet to DA Form 2 - Record of Court-Martial Conviction)
* Standard Form 88 (Report of Medical Examination)
* Standard Form 681 (Health Record - Immunization Record)
* Standard Form 603A (Health Record - Dental Record)
* Civilian Booking Report
* Alcohol Influence Report

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 records show he enlisted in the Regular Army on 23 October 1975 and he held military occupational specialty 16R (Short Range Gunnery Crewman).  

3.  He served in Germany from on or about 2 March 1976 to 19 January 1978.  He was awarded or authorized the Expert Marksmanship Qualification Badge with Hand Grenade Bar and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). 

4.  On 22 October 1977, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing a switch blade knife.

5.  On 25 October 1977, he again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order (twice).

6.  It appears his immediate commander initiated a Bar to Reenlistment Certificate against him.  His records contain a memorandum, dated 4 November 1977, Subject: Review of Bar to Reenlistment.  His commander stated he reviewed the bar on 4 November 1977 and still concurred the applicant should be barred. 

7.  On 20 January 1978, consistent with his pleas, the applicant was convicted by a general court-martial of one specification of wrongfully possessing marijuana and one specification of wrongfully selling marijuana.  The court sentenced him to a bad conduct discharge, confinement at hard labor for 6 months, a forfeiture of $225.00 pay for 8 months, and a reduction to the lowest enlisted grade.  

8.  On 15 February 1978, 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.

9.  On 30 March 1978, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

10.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 371, dated 23 June 1978, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

11.  He was discharged on 20 July 1978.  His DD Form 214 shows he was discharged as a result of court-martial in accordance with chapter 11-2 of Army Regulation 635-200 (Personnel Separations) with an under other than honorable conditions characterization of service.  This form further shows he completed a total of 2 years, 3 months, and 1 day of creditable military service and he had 183 days of lost time. 

12.  He submitted his medical, dental, and immunization record.  He also submitted civilian criminal records.  Additionally, he submitted four character reference letters from various individuals who attest to his good character, work ethics, and patriotism.  The authors further comment on his positive involvement in the community.  One of the authors indicated he interviewed the applicant and he believes personality conflicts between the applicant and his unit first sergeant led to close scrutiny of the applicant's actions and harassment.

13.  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.

14.  Army Regulation 635-200, 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.

15.  Army Regulation 635-200, 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.  

16.  According to the Manual of Courts-Martial, the maximum punishment for the offense of wrongful possession of a controlled substance (marijuana, less than 30 grams) is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a general 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 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.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  With respect to his contentions:

	a.  His punishment was not harsh as he believes.  The court had the authority to impose a maximum punishment of a dishonorable discharge, a forfeiture of all pay and allowances, and confinement for 2 years.  He received a lesser sentence.

	b.  His argument that if he had been assigned somewhere else, he would have performed better and not gotten into trouble is speculative at best.  His military service was marred with other misconduct that included two instances of NJP as well as a bar to reenlistment.  

	c.  Any issues that he now believes were unjust are presumed to have been raised by the applicant during his court-martial and it is also presumed the court would have addressed any points of contention.  The court-martial or the appellate process would have been the right forums to raise any related or extenuating issues. 
4.  In any case, 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.  

5.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable discharge or a general discharge is not warranted in this case.  He is not entitled to the requested relief.

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)                                         AR20120012931



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ABCMR Record of Proceedings (cont)                                         AR20120012931



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