IN THE CASE OF:	  

		BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140005875 


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 punishment was too harsh for the crimes he committed
* he was told by U.S. Army Criminal Investigation Command (CID) investigators he would not go to court if he turned in evidence concerning drugs
* at the time of his service he was afraid due to the death of his mother
* he is now a law-abiding citizen

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Nine letters of support
* A PRIDE Industries Certificate of Achievement and Certificate of Promotion
* PRIDE Industries Newsletter with a photograph of the applicant

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.  He enlisted in the Regular Army on 16 January 1978.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 71L (Administrative Specialist).

3.  The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on the following occasions for the below listed offenses:

* 11 July 1978, for stealing 4 travelers checks, 1 money order, and cash from another Soldier on 1 July 1978
* 1 December 1978, for possession of marijuana on 21 November 1978

4.  Special Court-Martial Order Number 108, issued by Headquarters, U.S. Army Training Center and Fort Dix, New Jersey, dated 29 October 1979, shows he pled guilty to and was found guilty of:

* 5 specifications of intent to defraud for the procurement of lawful currency, wrongfully and unlawfully uttering to the Fort Dix Garden State Club a check for the payment of money
* 5 specifications of intent to defraud for the procurement of lawful currency, wrongfully and unlawfully uttering to the McGuire Air Force Base Noncommissioned Officer Open Mess a check for the payment of money

5.  He was sentenced to reduction to the rank/grade of private/E-1, 2 months in confinement at hard labor, and a bad conduct discharge.  The Record of Trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. 

6.  Special Court-Martial Order Number 20, dated 18 March 1980, issued by the U.S. Army Field Artillery Center and Fort Sill shows his sentence was affirmed and Article 66 having been complied with, ordered the bad conduct discharge be executed.  The confinement was served and the reduction in rank was accomplished.
7.  His DD Form 214 shows he was issued a bad conduct discharge on 25 March 1980 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of court-martial.  He completed 2 years and 20 days of total active service with 50 days of time lost.

8.  He applied to the Army Discharge Review Board for an upgrade of his discharge and on 6 June 1984, the board denied his request.  He subsequently applied to the ABCMR for an upgrade of his discharge and on 3 November 1987, the Board denied his request.  The ABCMR Memorandum of Consideration is not available.

9.  The applicant provided 9 letters of support attesting to his good character, copies of photos, a certificate of achievement, and a certificate of promotion.

10.  His record is void of evidence and the applicant does not provide any evidence to corroborate he was told by CID investigators he would not go to court if he submitted evidence concerning drugs.

11.  There is also no evidence in the applicant's service record which shows he sought assistance from his chain of command for the resolution of issues
surrounding his mother's death.

12.  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.

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

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his bad conduct discharge to a general discharge was carefully considered and found not to have merit.

2.  Although the applicant alleges that he was informed by CID that he would not receive a court-martial in exchange for providing drug information, there is no evidence in his military records and the applicant has not provided any supporting this contention.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

3.  The evidence of record shows his trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterized the misconduct for which he was convicted.

4.  Based on the seriousness of the misconduct for which the applicant was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the requested relief.

5.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Clemency 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)                                         AR20140005875



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ABCMR Record of Proceedings (cont)                                         AR20140005875



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