BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20140000523 


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 (BCD). 

2.  The applicant states:

   a.  he was nineteen years old and made a bad decision; and
   
   b.  he would like his discharge upgraded in order to become a whole American before he dies.

3.  The applicant provides:

* National Personnel Records Center letter dated 31 May 2009
* DD Form 214 (Report of Separation from Active Duty)

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 military records show he enlisted in the Regular Army on 5 April 1972.  He was trained in and awarded military occupational specialty 12A (Pioneer).

3.  His record confirms he twice accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for the indicated offenses:

* 6 March 1973 - for being absent from his place of duty without authority on 
  1 March 1973
* 18 June 1973 - for disobeying a lawful order issued by his first sergeant 
  on 12 June 1973

4.  On 4 December 1973, contrary to his pleas, a special court-martial (SPCM) convicted the applicant of twice violating Article 92 of the UCMJ for unlawfully having in his possession a controlled substance "heroin and marijuana" on 28 September 1973.  The sentence imposed by the military judge was:

* forfeiture $217.00 pay per month for 6 months
* confinement at hard labor for 6 months
* to be discharged from the service with a BCD

5.  On 21 January 1974, the SPCM convening authority approved the sentence.

6.  SPCM Order Number 787, dated 20 December 1974, issued by Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, directed, the guilty findings and sentence having been finally affirmed, that the sentence be duly executed.  On 17 January 1975, the applicant was discharged accordingly after completing 2 years, 4 months, and 13 days of creditable active military service.  

7.  On 3 June 1982, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.




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

	a.  Chapter 11 in effect at the time provided that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been 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 (emphasis added) 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 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 contends his punitive discharge should be upgraded because he was only 19 years of age when he made the bad decision that led to his discharge.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms, contrary to his pleas, an SPCM convicted the applicant of a charge which resulted in his sentence that included a BCD.  His trial by court-martial was warranted by the gravity of the offense for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulation and his discharge appropriately characterizes the misconduct for which he was convicted.


3.  Records show that the applicant was nearly 19 years of age at the time of his enlistment and numerous acts of indiscipline and offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  Given the applicant’s undistinguished record of service and absent any compelling mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency in the form of either a fully honorable or a general under honorable conditions discharge 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 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)                                         AR20140000523





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ABCMR Record of Proceedings (cont)                                         AR20140000523



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