IN THE CASE OF:	  

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140008665 


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 (BCD).

2.  The applicant states he regrets any unfortunate circumstances that led to his discharge.

3.  The applicant provides no additional evidence.

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 22 August 1966 for a period of 3 years.  Upon completion of his initial term of enlistment, he was honorably discharged on 1 July 1969 for the purpose of immediate reenlistment.  
3.  He served in Korea from 5 November 1967 through 21 December 1969, a period of 2 years, 1 month, and 17 days.  The highest rank/grade he attained while serving on active duty was specialist five (SP5)/E-5.  However, he held the rank/grade of private (PV1)/E-1 at the time of his separation.

4.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for violating various articles of the UCMJ by committing the following offenses:

* being off post without a pass after duty hours (March 1968)
* failing to go to at the time prescribed to his appointed place of duty (January 1971)
* absenting himself from his unit to avoid a field exercise for the period         27 through 29 September 1971
* two instances of violating a lawful regulation for improper passing and parking on the shoulder of the road (December 1971)

5.  His record contains General Court-Martial Order Number 15, issued by Headquarters, 2d Armored Division, dated 8 August 1972, which shows he pled guilty and was found guilty of violating three specifications of Article 134 of the UCMJ for:

   a.  on 22 February 1972, wrongfully possessing one once, more or less, of a habit-forming drug, to wit:  heroin. 

   b.  on 22 February 1972, wrongfully selling a habit-forming narcotic drug, to wit:  heroin.

   c.  on 24 February 1972, wrongfully selling a habit-forming narcotic drug, to wit:  heroin.

6.  General Court-Martial Order Number 15, issued by Headquarters, 2d Armored Division, dated 8 August 1972, further shows he pled guilty and was found guilty of violating two additional specifications of Article 92 of the UCMJ for:

   a.  on 24 February 1972, wrongfully possessing five tablets of methadone.

   b.  on 24 February 1972, wrongfully possessing one gram, more or less, of marijuana.

7.  His record contains General Court-Martial Order Number 757, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated             16 August 1973, that states in a general court-martial case of the applicant the sentence promulgated in General Court-Martial Order Number 15, as provides for a dishonorable discharge, forfeiture of all pay and allowances becoming due on and after the date of the convening authority’s action, and confinement at hard labor for 10 years, adjudged 16 May 1972, has been affirmed pursuant to Article 66, but effective 8 August 1972, so much of the sentence to confinement at hard labor as exceeds three years is suspended for the period of confinement, at which time, unless the suspension is sooner vacated, the suspended portion shall be remitted without further action.  By General Court-Martial Order Number 11, this headquarters, dated 2 January 1973, unapplied forfeitures in excess of forfeitures of $120.00 pay per month for each month thereafter was suspended until such time as the sentence is ordered into execution, with provision for automatic remission.  The provisions of Article 71(c) having been complied with, the sentence, as thus modified, will be duly executed.

8.  On 21 September 1973, the applicant was discharged under the provisions of paragraph 11-1, Army Regulation 635-200 (Enlisted Personnel Separations), with a separation program number (SPN) code of 292.  Army Regulation 635-5 (Separation Documents), in effect at the time, showed that SPN code 292 indicated separation of enlisted personnel by reason of "other than desertion (courts-martial)."  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he received a dishonorable characterization of service.  He completed a total of 5 years, 5 months, and 25 days of creditable service with 582 days of lost time.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1, in effect at that time, stated that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD.

10.  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.

11.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's disciplinary history revealed he wrongfully possessed and sold drugs.  It further shows he had 582 days of lost time due to confinement.  His trial by court-martial was warranted by the gravity of his offenses.  His conviction and discharge were effected in accordance with applicable law and regulations.

2.  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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

3.  In view of the foregoing, his request should be denied.

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)                                         AR20140008665





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ABCMR Record of Proceedings (cont)                                         AR20140008665



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