IN THE CASE OF:	   

		BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140005767 


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 an honorable discharge.

2.  The applicant states he does not believe that his actions justified a bad conduct discharge.

   a.  He states that he entered the Army at age 18 or 19 and he did not realize the significance the Army would have on shaping his life.  He acknowledges he was immature and wild at the time, and that he hung around with the wrong crowd.

   b.  He also states that since his discharge he has changed his life.  He has learned how to treat people with respect and he has become a responsible citizen.  He has a wife, has joined a church, and he works in a hospital helping take care of patients.  He adds that he saved a person's life on the street by administering cardiopulmonary resuscitation (CPR).

   c.  He attributes his change in character and behavior, in part, to the training and discipline he received while in the Army.

3.  The applicant provides copies of eight character reference letters in support of his application.


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 11 April 1978 for a period of 
3 years.  At the time he was 20 years of age.  Upon completion of training, he was awarded military occupational specialty (MOS) 76W (Petroleum Supply Specialist).  He was advanced to private first class/pay grade E-3 on 1 January 1979.

3.  Headquarters, 24th Infantry Division (Mechanized), Fort Stewart, GA, General Court-Martial Order Number 42, dated 30 October 1980, shows the applicant was tried by a general court-martial.

   a.  He pled guilty and he was found guilty of –

* wrongfully having in his possession 176.45 grams of marijuana
* wrongfully selling marijuana

	b.  He was sentenced to a bad conduct discharge, to forfeit $300.00 per month for nine months, to be reduced to the grade of private (E-1), and to be confined at hard labor for nine (9) months.

   c.  On 30 October 1980, the General Court-Martial Convening Authority approved the sentence, except for the bad conduct discharge which was suspended pending appellate review.

4.  On 13 January 1981, the U.S. Army Court of Military Review reviewed the applicant's case and affirmed the findings of guilty and the sentence.

5.  The applicant did not appeal to the Court of Military Appeals.

6.  On 7 May 1981, the provisions of Article 71(c) having been complied with, the sentence of a bad conduct discharge was ordered duly executed.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated on 3 June 1981 with a bad conduct discharge under the provisions of Army Regulation 635-200 (Personnel Separations –
Enlisted Personnel), paragraph 11-2, as a result of court-martial.  He was credited with 2 years, 6 months, and 5 days of net active service this period.  He had 227 days of time lost time due to absence without leave and confinement.

8.  In support of his request the applicant provides eight character reference letters written by nurse co-workers at the Redmond Regional Medical Center (i.e., Ms. Sonia L---, Ms. Loretta B----, Ms. Pamela P-----, Ms. Gwendolyn B----, Ms. Susan C-----, Ms. De Andra C----, Ms. Judy P---------, and Mr. John S------).  They attest to the applicant's honesty, strong work ethic, dependability, and dedication to his duties.  They also note that he demonstrates care and concern for both his co-workers and patients.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

   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.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded because he was immature and wild, his actions did not justify a bad conduct discharge, and he has been a responsible person since he was discharged.

2.  The applicant successfully completed training, was awarded MOS 76W, and he attained the rank of PFC (E-3) within less than nine (9) months of active duty service, which demonstrates the capacity for honorable service.

3.  The applicant's contention that his actions did not justify a bad conduct discharge was a matter for consideration at his court-martial and the appeal process.  In fact, the evidence of record shows the applicant's trial by court-martial was warranted by the gravity of the offenses to which he pled guilty. Additionally, conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial and the appellate review process.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, his post-service conduct is insufficient as the sole basis for changing or upgrading his 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 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)                                         AR20140000777



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ABCMR Record of Proceedings (cont)                                         AR20140005767



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