BOARD DATE:	  23 September 2014

		DOCKET NUMBER:  AR20140002256 


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, an upgrade of his bad conduct discharge and restoration of his former rank/grade.  

2.  The applicant states he is a changed person now.  He works hard every day and night and tries to help people.  He started a group to help kids who cannot afford a gown for graduation.  

3.  The applicant provides:

* Department of Veterans Affairs (VA) Form 21-438 (Statement in Support of Claim)
* 4 statements of support/character reference letters
* Correspondence with the VA

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 served honorably in the Regular Army from 11 February 1972 to 2 July 1974 and from 3 July 1974 to 2 August 1979.

3.  On 3 August 1979, he reenlisted in the Regular Army.  He held military occupational specialty 94B (Cook). 

4.  He served in a variety of assignments during this period of reenlistment, including assignments at Fort Riley, KS, and Fort Hood, TX.  He was promoted to staff sergeant (SSG)/E-6 on 13 February 1980. 

5.  He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Army Good Conduct Medal (3rd Award), Army Achievement Medal, and Marksman Marksmanship Qualification badge with Rifle Bar (M-16). 

6.  On 28 June 1984, he was arraigned and tried at a general court-martial at Fort Hood, TX, for Charge 1, violating Article 134 of the Uniform Code of Military Justice as follows: 

* specification 1, wrongfully possessing marijuana on 22 February 1984
* specification 2, wrongfully distributing marijuana on 22 February 1984
* specification 3, wrongfully possessing marijuana on 6 March 1984
* specification 4, wrongfully distributing marijuana on 6 March 1984
* specification 5, wrongfully possessing marijuana on 14 March 1984
* specification 6, wrongfully distributing marijuana on 14 March 1984

7.  Consistent with his pleas to the charge and its specifications, the court found him guilty of the charge and all specifications.  The court sentenced him to confinement at hard labor for 2 years, forfeiture of all pay and allowances, a reduction to the lowest enlisted grade (E-1), and a bad conduct discharge. 

8.  On 17 August 1984, 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.

9.  On 25 October 1984, the U.S. Army Court of Military Review reviewed his case.  The court opined that the applicant maintained and the Government conceded that the possession offenses are multiplicious for findings and must be dismissed.  Accordingly, the court ordered the findings of guilty of specifications 1, 3, and 5 be set aside and those specifications be dismissed.  The remaining findings of guilty and the sentence were affirmed.

10.  Headquarters, U.S. Army Correctional Facility, Fort Riley, KS, General Court-Martial Order Number 272, dated 24 May 1985, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

11.  The applicant was discharged on 1 August 1985.  His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations), chapter 3, with a bad conduct discharge.  This form further shows he completed 4 years, 10 months, and 9 days of creditable military service during this period and he had lost time from 17 June 1984 to 31 July 1985.  Additionally, this form shows in:

* Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) - PV1 and E-1
* Item 12h (Effective Date of Pay Grade)- 1985-08-01

12.  He provides: 

	a.  VA Form 21-438, dated 17 February [2014] wherein he states he has not completed all his paperwork and wanted the VA to contact him. 

	b.  VA correspondence, dated 18 January 2012, in relation to his claim for various service-connected disabilities. 

	c.  Four statements of support/character reference letters from individuals who describe him as a dedicated person with an exemplary character.  He is active in a local church and has demonstrated loyalty to the ministry. 

13.  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.

14.  Army Regulation 635-200, 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.

15.  Army Regulation 635-200, 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.

16.  Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  Chapter 2 of the regulation in effect at the time contained guidance on the preparation of the DD Form 214.  It stated that items 4a and 4b showed the Soldier's rank and grade at the time of separation and item 12h showed the date of rank.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant's trial by a general 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.

3.  He was given a bad conduct discharge pursuant to an approved sentence of a general 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.

4.  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 an upgrade of his bad conduct discharge. 

5.  As a result of his actions, the court-martial sentenced him to a reduction to the lowest enlisted grade (E-1).  He held this grade at the time of his discharge from active duty.  His rank and grade are correctly reflected on his DD Form 214.  He provides no evidence of an error or an injustice.  He is not entitled to correction of his DD Form 214 to restore his grade.

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)                                         AR20140002256



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ABCMR Record of Proceedings (cont)                                         AR20140002256



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