IN THE CASE OF:	  

		BOARD DATE:  27 June 2013

		DOCKET NUMBER:  AR20120021695


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, in effect, an upgrade of his bad conduct discharge to a general discharge.

2.  The applicant states:

* he made a big mistake 35 years ago and he is sorry for his actions
* he will always love the Army
* he was 17 years old when he joined the Army in 1970
* he served 6 years on active duty
* after he arrived in Germany for his 2nd overseas tour, he fell in with the wrong crowd and he made a big mistake in his life
* he still thinks of it now, 35 years later when he is 60 years old
* upgrading his discharge would help him mentally – he thinks about his actions all the time

3.  The applicant provides no additional evidence in support of his request.

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 5 March 1970.  He completed training and he was awarded military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained while serving on active duty was specialist five (SP5)/E-5.

3.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for the offenses indicated:

* 2 December 1970, for being absent without leave (AWOL) from on or about 18 November 1970 through on or about 1 December 1970
* on 30 April 1971, for absenting himself, without authority, from his appointed place of duty on 13 April 1971
* on 21 September 1971, for absenting himself, without authority, from his appointed place of duty on 15 September 1971
* on 14 September 1973, for absenting himself, without authority, from his appointed place of duty on 8, 14, and 20 August 1973

4.  At a general court-martial at Frankfurt, Germany, he pled guilty to:

* 3 specifications of Charge 1, wrongful possession of drugs or instruments associated with drug usage
* 1 specification of Charge 2, violating a lawful general regulation

5.  On 18 May 1976, the Court found him guilty of all charges and specifications, and sentenced him to a bad conduct discharge, confinement at hard labor for
13 months, forfeiture of $300.00 pay per month for 13 months, and reduction to the rank/grade of private (PV1)/E-1.

6.  On 16 July 1976, the convening authority approved the sentence and, except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

7.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  General Court-Martial Order Number 778, issued by Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, dated 25 August 1977, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge was ordered duly executed.

9.  On 28 February 1979, he was discharged in accordance with the provisions of Army Regulation 635-200 (Enlisted Separations – Enlisted Personnel), paragraph 11-2, by reason of court-martial, with a character of service of under other than honorable conditions and issuance of a Bad Conduct Discharge Certificate.

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

	a.  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.

	b.  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.

	c.  Paragraph 11-2, in effect at the time, provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 applicant was given a bad conduct discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  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.

2.  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.

3.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20120021695



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