IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140005958 


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:

The applicant defers his request and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's bad conduct discharge. 

2.  Counsel states while in Europe, in October 1975, the applicant was convicted by a general court-martial that resulted in a bad conduct discharge and confinement.  He argues that:

* the applicant was 18 years of age at the time of his enlistment; he was young and in a foreign country, thinking irrationally, and easily influenced
* he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), but there was no formal or informal counseling conducted before the NJP
* there was no intervention, warning, guidance, or opportunity for a young Soldier in a foreign country to get steered in the right direction
* due to a lack of counseling and non-intervention, the applicant was in another incident involving possession of heroin
* his discharge should be reviewed for fairness and in the interest of justice to determine whether his discharge was proper and equitable 
* the applicant's Constitutional rights were violated as he was not provided effective counsel or representation and/or full disclosure was not given to the applicant in relation to his proceedings 

3.  Counsel provides a copy of the applicant's social security card. 

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 was born in February 1956 and enlisted in the Regular Army at nearly 19 years of age on 13 January 1975.  He completed basic combat and advanced individual training at Fort Knox, KY, and he was awarded military occupational specialty 11E (Armor Crewman).  

3.  On 9 April 1975, while still in training, the applicant's company commander notified him that he was considering whether he should be punished under Article 15, UCMJ, for violating Article 86 of the UCMJ, in that, being a member of the 2nd Platoon Guard, did at Area 13 South, Fort Knox, KY, on or about 2100 hours, 2 April 1975, without authority, go from his guard with intent to abandon the same.  

4.  On 9 April 1975, after having consulted counsel, the applicant declined trial by a court-martial, indicated that a spokesperson would not accompany him, indicated that matters in his defense and/or extenuation would be presented in person, and elected a closed hearing. 

5.  On 14 April 1975, after considering all matters presented in defense and/or extenuation and mitigation, the imposing officer found him guilty of the charge and punished him with a forfeiture of $80.00 pay, extra duty for 14 days, and restriction for 14 days.  He was advised of his right to appeal but the applicant elected not to appeal his punishment.

6.  Following completion of MOS training, the applicant was reassigned to Europe.  He served in Germany from on or about 18 June to 5 August 1975.  He was assigned to C Troop, 1st Squadron, 11th Armored Cavalry Regiment. 
7.  On 6 October 1975, he was arraigned and tried at a general court-martial at Headquarters, V Corps, Germany, for Charge 1, violating Article 134 of the UCMJ, specification 1, on or about 4 August 1975, wrongfully possessing 
94 packets, more or less, of heroin.  

8.  Consistent with his pleas to the charge and its specification, the court found him guilty of the charge and specification.  The court sentenced him to a reduction to the lowest enlisted grade, confinement at hard labor for 16 months, and a bad conduct discharge. 

9.  On 19 November 1975, the convening authority approved a lesser sentence of confinement at hard labor for 1 year, a forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and a bad conduct discharge, 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.  The applicant was confined at Fort Leavenworth, KS.

10.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 115, dated 3 February 1976, indicated the excess of a forfeiture of $160.00 pay per month for each month thereafter is suspended until the sentence is ordered executed, at which time, unless the sentence is sooner vacated, the suspended portion would be remitted. 

11.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 604, dated 9 July 1976, indicated that having served the period of confinement adjudged on 6 October 1975, the applicant is restored to duty pending completion of the appellate review. 

12.  On 11 July 1976, the applicant was placed on indefinite excess leave pending the completion of the appellate review of his case. 

13.  In early 1977, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 

14.  There is no indication he petitioned the U.S. Court of Military Appeals for a grant of review with respect to any matters of law. 

15.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 771, dated 25 August 1977, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

16.  The applicant was discharged on 28 February 1979.  His DD Form 214 (Report of Separation 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 (Enlisted Personnel Separations), paragraph 11-2, with an under other than honorable conditions discharge.  He was issued a Bad Conduct Discharge Certificate.  This form further shows he completed 3 years, 2 months, and 5 days of creditable active military service but he had lost time from 6 August 1975 to 11 July 1976 and excess leave from 12 July 1976 to 28 February 1979. 

17.  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.

18.  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.

19.  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.  With respect to the Article 15: 

	a.  The evidence of record shows the applicant violated the UCMJ.  He was advised by his commanding officer of his rights and he consulted with counsel.  He declined trial by a court-martial and elected a closed hearing and presentation of material on his behalf in person.  The imposing officer considered all matters presented and found him guilty.  The applicant was further advised of his right to appeal but he elected not to appeal.  

	b.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant was provided a defense attorney, was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels; but he elected not to do so.  

	c.  His NJP proceedings appear to have been conducted in accordance with law and regulation in effect at the time.  The contention that he was not counseled properly is speculative and the absence of counseling forms in his service record does not invalidate the Article 15 since there was no requirement to file trainee counseling forms in the service record.  

2.  With respect to the court-martial conviction: 

	a.  The applicant's trial by a general court-martial was warranted by the gravity of the offense 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.  He provides no evidence that he was denied due process.

	b.  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.

	c.  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.

	d.  The applicant was almost 19 years of age at the time of his enlistment and 19 years of age at the time of his offense/conviction.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

	e.  Counsel's contentions regarding the applicant's age and immaturity are rejected.  Such issues were presumably, or should have been, raised and/or considered during the court-martial proceedings or during the appeal process.  That would have been the appropriate forum to raise such issues.  
	f.  The applicant's service was clearly 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. 

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)                                         AR20140005958



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ABCMR Record of Proceedings (cont)                                         AR20140005958



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