IN THE CASE OF:	   

		BOARD DATE:	  9 October 2014

		DOCKET NUMBER:  AR20140003739 


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 to a general discharge. 

2.  The applicant states the Army showed him honor and loyalty.  He could not tell a noncommissioned officer (NCO) he passed the NCO Academy.

3.  The applicant provides his 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 records show he enlisted in the Regular Army on 14 July 1975 and he held military occupational specialty 19D (Cavalry Scout). 
3.  He served in Germany from 1 December 1975 to 21 May 1978.  He was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 

4.  On 22 May 1978, the applicant was convicted by a special court-martial of one specification of wrongfully attempting to transfer 92.93 grams, more or less, of marijuana, and one specification of wrongfully possessing 92.93 grams, more or less, marijuana.  The court sentenced him to a bad conduct discharge, confinement at hard labor for 5 months, and a reduction to the lowest enlisted grade.  

5.  On 7 June 1978, the convening authority approved the sentence, and except for the bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 29 August 1978, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

7.  There is no indication he petitioned the Court of Military Appeals for a grant of review with respect to any matter of law. 

8.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, Special Court-Martial Order Number 173, dated 10 October 1978, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

9.  He was discharged on 31 January 1979.  His DD Form 214 shows he was discharged as a result of court-martial in accordance with paragraph 11-2 of Army Regulation 635-200 (Personnel Separations) with an under other than honorable conditions characterization of service.  This form further shows he completed a total of 3 years, 2 months, and 17 days of creditable military service and he had 121 days of lost time. 

10.  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.

11.  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.

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a special 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.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence 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.

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.  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 discharge or a general discharge is not warranted in this case.  He is not entitled to the requested relief.

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)                                         AR20140003739





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ABCMR Record of Proceedings (cont)                                         AR20140003739



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