IN THE CASE OF:	  

		BOARD DATE:	    26 March 2015

		DOCKET NUMBER:  AR20140013600 


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 that his bad conduct discharge (BCD) be upgraded.

2.  The applicant states that he was a good Soldier who made a bad mistake; however, he does not believe that one mistake should haunt him for the rest of his life. 

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), DA Form 2-2 (Insert sheet for DA Form 2-1), and his separation orders. 

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 United States Army Reserve (USAR) in Louisiana on 15 November 1975 for a period of 6 years.  He completed his active duty training as a clerk-typist and was returned to his USAR unit.

3.  On 5 September 1977, he was ordered to active duty for a period of 19 months and 7 days and was transferred to Frankfurt, Germany on 26 September 1977 for assignment to a Division Support Command.

4.  On 23 August 1978, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 11 July to 9 August 1978.

5.  On 28 December 1978, he was honorably discharged for the purpose of immediate reenlistment.  On 29 December 1978, he reenlisted for a period of      3 years.

6.  He departed Germany on 23 September 1979 for assignment to Fort Campbell, Kentucky.

7.  On 19 May 1981, he was convicted by a special court-martial of two specifications of possession of illegal drugs on a military post, one specification of selling illegal drugs on a military post, two specifications of attempting to sell illegal drugs on a military post, and one specification of transferring illegal drugs on a military post.  He was sentenced to confinement at hard labor for 2 months, reduction to the pay grade of E-1 and a BCD.

8.  The appellate review of the applicant’s case was completed on 29 March 1982 and on 11 May 1982 he was discharged pursuant to a duly-affirmed court-martial conviction.  He had served 4 years, 10 months and 25 days of active service and he had 35 days of lost time due to AWOL.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the 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.

10.  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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with the applicable law and regulation and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.

2.  The applicant’s contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offenses, the lack of mitigating circumstances and his otherwise undistinguished record of service.

3.  Accordingly, his sentence was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.

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)                                         AR20140013600





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ABCMR Record of Proceedings (cont)                                         AR20140013600



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