IN THE CASE OF:	   

		BOARD DATE:	  19 February 2015

		DOCKET NUMBER:  AR20140011753 


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 his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant states his discharge should be upgraded to honorable because at the time he was addicted to heroin.  Prior to his tour in Germany, he didn't even smoke cigarettes but because of peer pressure when he was 18 he stupidly gave in.  He has been clean for 6 years.  At the time, addiction was not considered a disease and he should have been given treatment instead of prison.

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.  Having had prior active service, the applicant enlisted in the Regular Army on 30 August 1978 when he was 23 years of age and while assigned to the 124th Maintenance Company, Germany.  

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 20 August 1979, for one specification each of being absent from his assigned place of duty and disobeying a lawful order
* 14 January 1980, for one specification of being absent from his assigned place of duty

4.  His record contains a DA Form 4465 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Military Client Intake and Follow-up Record), dated 17 December 1979, wherein it shows he was enrolled in the ADAPCP on that date for detoxification/treatment based on medical discovery.

5.  On 15 April 1980, he was convicted by a general court-martial of one specification each of, on or about 22 December 1979:

* assaulting a German national by striking him on the head with a means to likely produce grievous bodily harm
* conspiring with another Soldier to rob a German national

6.  He was sentenced to a bad conduct discharge, confinement for 2 years, and reduction to private (PVT)/E-1.

7.  He was subsequently incarcerated at Fort Leavenworth, KS.  On 15 April 1982, he was placed on excess leave while awaiting the appellate review.

8.  On 5 November 1982, his general court-martial conviction for assaulting a German national and only so much of his sentence as provided for a bad conduct discharge, confinement for 15 months, and reduction to PVT was affirmed by the U.S. Army Court of Military Review.  The charge of conspiring to rob a German national was dismissed.  The record of trial was forwarded to the Army Judge Advocate General for review by a Court of Military Review.

9.  General Court-Martial Order Number 206, dated 23 March 1984, issued by the U.S. Combined Arms Center and Fort Leavenworth, shows the applicant's conviction for assaulting a German national and sentence were reaffirmed and the convening authority ordered his bad conduct discharge executed.  On 11 April 1984, he was discharged accordingly.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 3-11, by reason of court-martial, with a bad conduct discharge.  He completed 3 years, 7 months, and 12 days of net active service during this period of service of which 728 days was excess leave.  He had 2 years of lost time due to being in confinement.

11.  There is no evidence in his record that shows he ever requested treatment for dealing with a drug problem while serving on active duty.

12.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  The version of the regulation in effect at the time, prescribed the policies and procedures for separating members with a bad conduct discharge.  It stipulated 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 was ordered duly executed.

13.  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.

14.  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.

15.  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 evidence of record confirms the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  Notwithstanding his contention that he never received treatment for a drug problem, the available evidence shows he was medically identified as having a drug problem on 17 December 1979 and was enrolled in the ADAPCP at that time.  In addition, he could have raised the claim of not receiving treatment for his drug usage as an issue to be considered in mitigation during the court-martial and/or appellate process.

2.  By law, any redress by the ABCMR 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.

3.  After a review of his record of service, it is clear his service did not meet the criteria for an honorable discharge or any characterization of service other than the one he received.  Therefore, 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)                                         AR20140011753





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ABCMR Record of Proceedings (cont)                                         AR20140011753



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