IN THE CASE OF:	  

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130015858 


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, upgrade of his bad conduct discharge (BCD).

2.  The applicant states he was singled out for punishment, then his sentence was reduced due to good conduct.  Therefore, his infraction was due to be expunged, but his discharge was never revised.  He has been a model citizen for many years and very active in community service and in his religious beliefs.

3.  The applicant provides a Standard Form 180 (Request Pertaining to Military Records) requesting copies of his military records from the National Archives and Records Administration.

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 enlisted in the Regular Army on 23 June 1961.  He completed training, was stationed in Germany, and was advanced to pay grade E-2 in September 1961.  On 18 November 1961, he was convicted by a summary court-martial of aggravated assault with a dangerous weapon.  He cut another Soldier with a razor blade in an argument over a bar stool.

3.  On 1 December 1961, the applicant, then serving in pay grade E-3, was apprehended in a civilian bar along with several other Soldiers.  He was found to be in possession of suspected marijuana.  He was detained by military authorities and the suspected substance was submitted for laboratory testing.

4.  The applicant was tried by a general court-martial.  He pled not guilty but was found guilty of possession of marijuana.

5.  During the sentencing phase of the trial, the applicant's platoon leader, squad leader, and the company security officer testified in the applicant's behalf and indicated that, notwithstanding this offense and a previous court-martial conviction, they trusted him, considered him to be a good worker and a good Soldier, and were willing to retain him in the unit.

6.  The adjudged sentence consisted of reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 1 year, and a BCD.  The Staff Judge Advocate found the evidence substantiated the finding of guilty and the record showed the sentence was appropriate.  The convening authority approved the sentence as adjudged and, except for the BCD which was pending appellate review, ordered it executed.

7.  The Army Board of Review affirmed the finding and sentence and the U.S. Court of Military Appeals denied the applicant's petition for appeal.  On 15 November 1963, the provisions of Article 71(c) of the Uniform Code of Military Justice having been complied with, the BCD was ordered executed.

8.  The applicant was discharged on 30 November 1963.  He completed 1 year, 8 months, and 25 days of creditable service and had 258 days of lost time.

9.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority 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.

	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.

10.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Title 10, U.S. Code, section 1552, the authority under which this Board acts precludes any action by this Board which would disturb the finality of a court-martial conviction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by court-martial was warranted by the gravity of the offense charged, especially in light of his previous court-martial conviction for a serious crime.

2.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted and his overall record.

3.  There is no evidence to support his assertions that his offense was to be expunged and his discharge upgraded.

4.  Good post-service conduct is not normally sufficient to upgrade a discharge.

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)                                         AR20130015858



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ABCMR Record of Proceedings (cont)                                         AR20130015858



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