IN THE CASE OF:	  

		BOARD DATE:	 15 April 2014 

		DOCKET NUMBER:  AR20130013831 


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 "dishonorable discharge" (should read bad conduct discharge (BCD)) to an honorable discharge.

2.  He states he was young in 1976 and his hot temper prevailed.  He believes that all parties would consider it a mistake that he received a BCD.  This assumption is based on the fact that he was allowed to reenlist for 6 years and he was promoted to the rank of sergeant at one point in his career.

3.  He provides a supporting statement from a retired sergeant first class.

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 15 June 1971 at the age of 19 years, 5 months, and 10 days.  He was honorably discharged on 3 September 1973 for immediate enlistment which was accomplished on the following day.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on:

* 26 April 1972 for violating a general order on 17 April 1972
* 1 March 1975 for failing to go to his appointed place of duty on 11 February 1975
* 6 May 1975 for failing to go to his appointed place of duty on 24 April 1975

4.  On 15 July 1975, he was convicted by a special court-martial of being disrespectful to a superior commissioned officer, willfully disobeying a lawful command from a superior commissioned officer, and being drunk and disorderly. The court sentenced him to reduction to the grade of E-1, extra duty for 1 month, and forfeiture of $229.00 pay for 1 month.

5.  On 6 October 1975, he was convicted by a special court-martial of wrongfully and unlawfully possessing a controlled substance, 65 tablets of a methaqualone-based drug.  The court sentenced him to reduction to the grade of E-1, confinement at hard labor for 4 months, forfeiture of $229.00 pay for 4 months, and a BCD.  The convening authority approved the sentence and the U.S. Army Court of Criminal Appeals affirmed the findings and sentence on 12 November 1976.

6.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions on 3 February 1977 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2.  He was issued a BCD certificate and assigned a separation code of JJD.  He completed 5 years, 4 months, and 16 days of active service with lost time from 7 October 1975 to 8 January 1976.

7.  The supporting statement submitted by the applicant speaks highly of the applicant's helpfulness and dependability.  The author stated he has known the applicant for more than 20 years.  He said he could confirm that the applicant loves this country and was disappointed in his behavior while in service.  He added that the applicant has personally helped many people in Alcoholics Anonymous, including himself.  He said he knew the applicant made some mistakes, but opined that the Army made an even bigger mistake when they let the applicant go.  He concluded that the applicant deserved better.

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

	a.  Chapter 11, in effect at the time, established policy and procedures for separating members with a dishonorable or bad conduct discharge.  Paragraph 11-2 provided that a BCD would be given pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and 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.

9.  Court-martial convictions stand as adjudged or as 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 records show the applicant was 19 years, 5 months, and 10 days of age at the time of his enlistment and 21 years, 7 months, and 29 days of age at the time of his BCD.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service. Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  Although the applicant provided a supporting statement attesting to his dependability and his outstanding qualities, good post-service conduct alone is not a basis for upgrading a discharge.

3.  He was convicted by a special court-martial which was warranted by the gravity of the offense charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

4.  He was given a BCD pursuant to an approved sentence of a special court-martial.  The appellate review was completed and sentence affirmed.  All requirements of law and regulation were met and his rights were fully protected.

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.  Therefore, given his offense and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20130013831



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ABCMR Record of Proceedings (cont)                                         AR20130013831



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