IN THE CASE OF:	  

		BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20140000983 


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 he was found guilty of amended charges.  The original charges were based on false testimony and he has held to the fact that he had absolutely nothing to do with the matter.  He needs the charges expunged and his discharge upgraded in order to obtain a security clearance for his civilian job.

3.  The applicant provides a self-authored statement, a Report of Result of Trial, and General Court-Martial (GCM) Order Number 64, dated 24 October 1991.

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.  After having prior service in the U.S. Army Reserve (USAR), he enlisted in the Regular Army (RA) on 16 August 1989.  He was trained in and awarded military occupational specialty (MOS) 55B (Ammunition Specialist).

3.  GCM Order Number 64, dated 24 October 1991, issued by Headquarters, 21st Theater Army Area Command, Kaiserslautern, Germany shows the applicant's pleas to the following offenses:

	a.  He pled not guilty to one specification of the wrongful use of lysergic acid diethylamide (LSD) on divers occasions between 1-31 March 1991, but guilty of attempted wrongful use of LSD.  He was found guilty of the amended charge (Article 112a).

	b.  He pled not guilty to one specification wrongful distribution of an unknown amount of LSD on divers occasions between 1-31 March 1991, but guilty to attempted wrongful distribution of an unknown amount of LSD by transferring a substance believed to be LSD.  He was found guilty of the amended charge (Article 112a).

	c.  He pled not guilty and was found not guilty of one specification of false swearing on or about 23 May 1991 (Article 134).

4.  The resulting sentence, adjudged on 22 August 1991, was a BCD, confinement for 1 year, forfeiture of all pay and allowances, and reduction to PV1/E-1.  Only so much of the sentence that provided for a BCD, confinement for 9 months, forfeiture of all pay and allowance for 9 months, and reduction to the grade of PV1/E-1 was approved, and except for the BCD, was ordered executed.

5.  On 11 December, GCM Order Number 96, issued by Headquarters, U.S. Army Armor Center and Fort Knox, KY, directed, that Article 71c of the Uniform Code of Military Justice having been complied with, that the BCD portion of the sentence be duly executed.  On 28 September 1992, the applicant was discharged accordingly.

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge shows he was discharged as the result of court-martial and received a BCD.  It also shows at the time of his discharge he completed 2 years, 5 months, and 29 days of creditable active military service during the period under review with lost time due to confinement from 22 August 1991 to 5 April 1992 and excess leave from 6 April 1992 to 
28 September 1992.

7.  The applicant provides a statement in which he contends that he was falsely charged and found guilty of a drug-related incident which he had absolutely nothing to do with.  The drugs belonged to his roommate and despite his continued adherence to the facts he was still drummed out on the false testimonies of fellow Soldiers to include his roommate.  He believes that this took place as a result of his appointment as the Battalion Commander's driver.  The applicant's roommate advised him of his involvement and that there were at least a dozen Soldiers involved in the ingestion of LSD.  He had no knowledge of where the drugs came from but believes it was a deep collaborative lie formulated to protect the offending individuals.  Although there were many Soldiers involved only he was charged and tried.  Regardless of his theories, it has been his belief for over 20 years that he was wrongfully accused and found guilty.  There was never any visual witness proof or medical tests done to substantiate the fact that he used an illegal substance.

8.  Applicant's medical records are not available for review.

9.  Army Regulation 635-200 (Personnel Separations Enlisted Personnel sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge or a BCD.  It stipulates that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the BCD portion of the sentence is 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.  Under the provisions of 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 BCD should be upgraded because he was falsely accused of an offense that he did not commit.  His contention of innocence is noted as he pled not guilty to all the initial charges levied against him.  However, he pled guilty to amended charges.  There is no evidence in the record, nor did he provide evidence, to support his contention that he was falsely accused of the amended charges that he was convicted of resulting in his BCD.

2.  The evidence of record confirms the applicant was convicted by a general court-martial of the "attempted wrongful use and attempted wrongful distribution of LSD."  His trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  

3.  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 sentence imposed.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request for an upgrade of his discharge therefore his request should be denied.

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)                                         AR20140000983





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ABCMR Record of Proceedings (cont)                                         AR20140000983



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