BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130002205 


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 upgrade of his bad conduct discharge to honorable or general under honorable conditions.

2.  The applicant states:

* he feels the charges against him of marijuana possession were trumped up as evidenced by the fact that he was released early from prison
* he was told there was insufficient evidence to hold him any longer

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 215 (Correction to DD Form 214)

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 was inducted into the Army of the United States on 13 May 1968.  He completed training and was awarded military occupational specialty 36C (lineman).

3.  Between 1 May 1969 and 20 April 1970, nonjudicial punishment was imposed against him on six occasions for:

* disobeying a lawful command
* disobeying a direct order and failing to go at the time prescribed to his appointed place of duty
* being absent without leave (AWOL) from 12 August 1969 to 19 August 1969
* failing to go at the time prescribed to his appointed place of duty (twice)
* being AWOL from his unit for approximately 5 hours

4.  On 8 July 1970, he was convicted by a general court-martial of possessing marijuana.  He was sentenced to a dishonorable discharge; forfeiture of all pay and allowances; and confinement at hard labor for 4 years, 7 months, and 11 days.  On 22 October 1970, the convening authority approved the sentence.

5.  On 2 April 1971, the Secretary of the Army remitted the sentence to confinement in excess of 1 year and changed his dishonorable discharge to a bad conduct discharge.  He was restored to duty pending completion of an appellate review.

6.  The U.S. Army Court of Military Review decision is not available for review.  However, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 168, dated 14 February 1972, shows the applicant's sentence had been finally affirmed and, Article 71(c) having been complied with, the bad conduct discharge would be executed.

7.  He was issued a bad conduct discharge on 23 February 1972 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a court-martial.  He completed 2 years, 10 months, and 7 days of creditable active service with 337 days of lost time.

8.  Army Regulation 635-200 sets forth the basic authority for 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.  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.

9.  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's contention that the drug charges against him were trumped up relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

2.  A trial by court-martial was warranted by the gravity of the offense 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.

3.  His record of service included six nonjudicial punishments and one general court-martial conviction for possessing marijuana.  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.

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.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130002205



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ABCMR Record of Proceedings (cont)                                         AR20130002205



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