IN THE CASE OF:	  

		BOARD DATE:  19 September 2013

		DOCKET NUMBER:  AR20130001257 


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 general under honorable conditions.

2.  The applicant states:

	a.  His narrative reason for discharge should be changed from dropped from the rolls as a military prisoner with a bad conduct discharge to show he received a general discharge under honorable conditions.  He did not receive a DD Form 214 (Certificate of Release or Discharge from Active Duty) upon his discharge after serving his confinement.  He believes his punishment was too severe, especially in view of the fact that he received confinement.

	b.  He entered the Army on 17 August 1977 and he believed it would be his career.  He served ably in military occupational specialty (MOS) 75D (Personnel Records Specialist) for his entire career.  He was awarded the Army Good Conduct Medal (4th Award), Army Commendation Medal, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Noncommissioned Officer (NCO) Professional Development Ribbon with Numeral 2, and Army Achievement Medal.

	c.  In his 13-year career, he only had one Article 15 hearing, which was for the use of marijuana.  It was also the beginning of his descent into the addiction of drugs.  He did not have the coping skills or truly good influences at the time.  However, he continued to perform his duties at an above average level and earned the Army Achievement Medal and two awards of the Army Good Conduct Medal during this period.

	d.  He spiraled deeper into addiction and it was not noticed by his fellow Soldiers or properly intervened by the NCO's or officers in his unit.  He felt lost; yet as he struggled, there was no action directed toward him to seek help.

	e.  At the time of the charges that led to his bad conduct discharge, his addiction was full blown.  He wasn't truly able to help in his own defense because he was allowed to continue to actively use drugs until his court-martial.  There were no restrictions on his movements or orders to attend counseling.  He served with distinction for 13 years and he is now in recovery.  He simply wishes to have his discharge upgraded.

3.  The applicant provides:

* Certificate of Official Records
* six orders, dated between 2 August 1983 and 30 July 1990
* automated DA Form 2 (Personnel Qualification Record – Part I), dated 10 July 1989
* DA Form 2-1 (Personnel Qualification Record – Part II)
* seven miscellaneous certificates of achievement and training, dated 6 October 1978 to 24 September 1986

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 DA Form 2 shows his date of birth as 15 October 1959.  However, the Certificate of Official Records he provides shows his date of birth as 20 July 1957.

3.  His records show he enlisted in the U.S. Army Reserve Delayed Entry Program on 18 March 1977 and he was discharged on 16 August 1977 for the purpose of immediate enlistment in the Regular Army.

4.  He enlisted in the Regular Army on 17 August 1977 and he held MOS 75D.  The highest rank he attained while serving on active duty was specialist four/E-4.

5.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, as follows on:

* 15 December 1981, for wrongfully possessing marijuana and for wrongfully using marijuana
* 10 October 1984, for wrongfully using marijuana and for wrongfully using cocaine

6.  On 5 December 1988, he was assigned to the 277th Quartermaster Battalion, 4th Training Brigade, Fort Jackson, SC.

7.  On 22 May 1990, he was convicted by a special court-martial of:

* one specification of stealing nine blank checks from another Soldier
* seven specifications of falsely making checks with the intent to defraud which would, if genuine, legally harm another

8.  He was sentenced to reduction to private/E-1, confinement for 3 months, and a bad conduct discharge.

9.  He was confined by military authorities from 22 May to 6 August 1990.  On 6 August 1990, he was reported as present for duty by the 277th Quartermaster Battalion, 4th Training Brigade, Fort Jackson, SC.

10.  On 12 September 1990, he was placed on excess leave.

11.  Special Court-Martial Order Number 4, Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, SC, dated 7 October 1991, shows that the applicant's sentence having been affirmed and complied with, the convening authority ordered his bad conduct discharge executed.

12.  It appears that he never reported back to Fort Jackson, SC, so he could be issued a DD Form 214 after execution of his bad conduct discharge was ordered.

13.  The applicant provides and his records contain a Certificate of Official Records, dated 23 August 2001, issued by the Department of Defense Manpower Data Center wherein it shows his dates of active duty service in the Army as 17 August 1977 to 12 September 1990 and his narrative reason for discharge as "dropped from the rolls as a military prisoner with bad conduct discharge."

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy governing 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.

16.  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's trial by a special court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The applicant contends he was addicted to drugs when court-martial charges were preferred against him and he was allowed to continue to actively use drugs as no restrictions were placed on him and he was not ordered to attend counseling.  However, the evidence of record shows court-martial charges were preferred against him for stealing checks from another Soldier and using those checks.  There is no evidence that shows he was identified as abusing drugs at any time after the NJP he received in 1984 for wrongfully using marijuana and cocaine.  In any case, he could have referred himself for treatment.

4.  In addition, at the time of his court-martial he was over 30 years of age and had over 12 years of active duty service.  He should have been mature enough to seek help that he may have needed for any problems/issues he was dealing with.

5.  After a review of his record of service, it is clear that his service did not meet the criteria for an honorable or a general discharge or any characterization of service other than the one he received.  Therefore, 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 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)                                         AR20130001257



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ABCMR Record of Proceedings (cont)                                         AR20130001257



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