IN THE CASE OF:	  

		BOARD DATE:  27 February 2014

		DOCKET NUMBER:  AR20130010537 


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. 

2.  The applicant states:

* all the drug tests that were administered in Germany between 1982 and 1984 were tainted
* he read an article about that in his hometown newspaper but the military never informed him
* he feels that after 30 years his discharge should be upgraded
* he never connected with the punch on that Military Police (MP); he lied and never took the stand because he knew he would have committed perjury

3.  The applicant does not provide any evidence. 

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 records show he enlisted in the Regular Army on 26 April 1977 and he held military occupational specialties 13B (Cannon Crewman) and 71L (Administrative Specialist).

3.  He also reenlisted on 26 October 1979 and on 14 October 1982.  He served in Germany and he was awarded or authorized the Army Service Ribbon, Army Good Conduct Medal, Noncommissioned Officer Professional Development Ribbon, Army of Occupation Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar. 

4.  On 1 February 1983, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for falsifying official documents with intent to deceive. 

5.  On 23 March 1983, he was convicted by a special court-martial of:

* one specification of assaulting another Soldier by unlawfully striking him on the left face with his closed fist
* one specification of wrongfully and unlawfully impeding a lawful apprehension of a Soldier by the MPs, by causing a .45 caliber pistol of the MP to fall off his pistol belt and causing the MP to release the Soldier from his control
* one specification of being disorderly

6.  The court sentenced him to reduction to the lowest enlisted grade, a forfeiture of $382.00 pay per month for 2 months, confinement at hard labor for 2 months, and a bad conduct discharge.

7.  On 7 June 1983, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

8.  On 23 March 1984, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.


9.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, Special Court-Martial Order Number 82, dated 27 June 1984, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

10.  He was discharged on 19 July 1984.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with a bad conduct discharge.  This form further shows he completed 7 years, 1 month, and 5 days of creditable military service during this period and he had lost time from 23 March to 11 May 1983. 

11.  On 1 August 1986, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  The ADRB unanimously voted to deny him a change in the character of service or the reason for discharge. 

12.  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.

13.  Army Regulation 635-200 provides 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.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a special 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 discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence was ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  The applicant was not discharged for a drug test.  He was discharged pursuant to a court-martial conviction for assault and impeding apprehension.  His contentions that the drug test was tainted and/or the MP lied are not supported by any evidence.  Such issues, if true, would have or should have been raised during the court-martial and/or the appellate process.  That was the proper forum to raise any extenuating issues. 

4.  The Army has never had a policy wherein a characterization of service is upgraded due to passage of time.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this Board 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.

5.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  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 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)                                         AR20130010537





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ABCMR Record of Proceedings (cont)                                         AR20130010537



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