IN THE CASE OF:	  

		BOARD DATE:  31 October 2013

		DOCKET NUMBER:  AR20130006004 


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, that his bad conduct discharge be upgraded.

2.  The applicant states:

	a.  He never had any problems while he was stationed at Fort Hood, TX.

	b.  While he was stationed in Panama in 1980, he was repairing a radio when a Soldier hit him in the back of his head causing him to fall and strike his forehead on a radio.  He then fell back and struck his head on the concrete floor.

	c.  He was knocked unconscious and he was bleeding to death when a Soldier from another unit came to assist him and took him to the hospital for treatment.  

	d.  He was envied and hated by his peers as well as by his upper chain of command.  

	e.  Since his discharge, he has been working with a small business, which he owns, trying to make a living and support his family.

	f.  He has always been a good person, a good leader, and a Christian-minded and caring person.

	g.  He and his wife went through a bad divorce.  After the divorce, his ex-wife tried to take everything away from him.  He ended up getting custody of his children which he finished raising and educating.

	h.  In the end, he ended up with thousands of medical bills that almost cost him his small business.  

	i.  His health started to decline and he began to have migraine headaches and his heart was beating too fast.  He had heart surgery and his doctor told him that he could no longer work.  The stress was too much and he has been depressed since his incident while in the military.  

	j.  He was used by the upper authorities in the service, he was tried, and then convicted.

3.  The applicant provides:

* DD Forms 214 (Report of Separation from Active Duty) for the periods ending 20 May 1974 and 14 May 1978
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 June 1983
* copy of his business card
* three Department of Veterans Affairs (VA) Forms 21-4142 (Authorization and Consent to Release Information to the VA)
* three third-party letters of support
* County Sheriff's Office Criminal Records Check

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 on 28 June 1972.  On 21 May 1974, he reenlisted for a period of 4 years.  On 15 May 1978, he reenlisted for a period of 4 years.  

3.  On 12 March 1982, he was found guilty by a general court-martial of the following specifications:

	a.  wrongfully having in his possession 79 grams, more or less, of marijuana;

	b.  wrongfully transferring 79 grams, more or less, of marijuana;

	c.  wrongfully selling 79 grams, more or less, of marijuana;

	d.  wrongfully having in his possession 197 grams, more or less, of marijuana;

	e.  wrongfully transferring 197 grams, more or less, of marijuana;

	f.  wrongfully selling 197 grams, more or less, of marijuana;

	g.  wrongfully having in his possession 874 grams, more or less, of marijuana.

4.  He was sentenced to confinement at hard labor for 1 year and to be dishonorably discharged from the service. 

5.  On 25 May 1982, the sentence was approved.  The appellate review was completed on 13 April 1983.  

6.  Headquarters, XVIII Airborne Corps and Fort Bragg General Court-Martial Order Number 10, dated 13 April 1983, shows that only so much of the sentence as provided for a bad conduct discharge and confinement at hard labor for one year was affirmed.  That modified sentence having been affirmed and the provisions of Article 71c having been complied with, the sentence was ordered to be executed.

7.  Accordingly, he was discharged on 3 June 1983 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with a bad conduct discharge.

8.  The applicant provides:

	a.  a copy of his business card which shows he owns a paint and body shop;

	b.  three VA Forms 21-4142 that suggest he is attempting to obtain medical care form the VA;

	c.  three third-party letters of support that attest to his post-service positive conduct and accomplishments; and 

	d.  County Sheriff's Office Criminal Records Check which do not show any major violations of the law.  

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

	a.  Paragraph 3-10 provides that a Soldier will 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.

	b.  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.

	c.  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.

10.  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 trial by 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 final discharge appropriately characterized the misconduct for which he was convicted.
2.  His record of indiscipline includes a general court-martial conviction for multiple specifications of wrongful possession, transfer, and the sale of marijuana.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

3.  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 seriousness of his criminal offenses and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  His post-service conduct and accomplishments and the supporting documentation he provided were noted; however, without evidence showing error or injustice in his discharge proceedings and/or the characterization of his service, there is no basis for granting 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)                                         AR20130006004



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ABCMR Record of Proceedings (cont)                                         AR20130006004



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