IN THE CASE OF:	  

		BOARD DATE:	    6 August 2013

		DOCKET NUMBER:  AR20120022985 


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 honorable.

2.  The applicant states he made some bad choices due to depression and an injury.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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 December 1976 for a period of 4 years.  He completed training and was awarded military occupational specialty 11B (infantryman).  On 9 October 1980, he was honorably discharged for immediate reenlistment.  He reenlisted on 10 October 1980 for a period of 6 years.

3.  In January 1981, nonjudicial punishment (NJP) was imposed against him for using provoking words.

4.  In August 1981, NJP was imposed against him for possessing marijuana.

5.  Records show he sustained a knee injury in a parachute landing fall on a night jump in September 1981.  He was referred to a physical evaluation board.

6.  On 2 April 1982, he was convicted by a special court-martial of possessing marijuana (two specifications) in October and November 1981, transferring marijuana (two specifications) in October and November 1981, and selling marijuana (two specifications) in October and November 1981.  He was sentenced to confinement at hard labor for 6 months, reduction to E-1, and a bad conduct discharge.  On 7 June 1982, the convening authority approved the sentence.

7.  In December 1982, NJP was imposed against him for failing to repair (two specifications).

8.  His disability proceedings are not available; however, it appears he was authorized severance pay (20 percent) in January 1983.

9.  On 14 March 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

10.  On 1 December 1983, the convening authority ordered the bad conduct discharge duly executed.

11.  He was issued a bad conduct discharge on 19 December 1983 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a court-martial.  He completed a total of 6 years, 8 months, and 29 days of creditable active service with 158 days of lost time.

12.  There is no evidence of record which shows he was diagnosed with depression prior to his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11, in effect at the time, stated 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.

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.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

17.  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 contends that he was suffering from depression.  However, there is no evidence and he provides no evidence which shows he was diagnosed with depression prior to his discharge.

2.  He also contends that he made some bad choices due to an injury.  It appears that he was referred for disability processing and severance pay was authorized in January 1983; however, his separation with a bad conduct discharge would have discontinued that process.

3.  A trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

4.  His record of service included three NJP's, one special court-martial conviction, and 158 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

5.  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 were therefore appropriate.  As a result, clemency is not warranted in this case.

6.  In view of the foregoing, there is no basis for granting the applicant's quested 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 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)                                         AR20120022985



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ABCMR Record of Proceedings (cont)                                         AR20120022985



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