BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140014189 


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.

2.  The applicant states that the charges were never proven to be valid.  He never received a copy of his discharge so he does not remember the correct dates.  He is attempting to receive benefits to help him.  

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 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army, in pay grade E-1, on 25 July 1977, for 3 years.  He was awarded military occupational specialty 94B (food service specialist).   He was advanced to pay grade E-2 on 25 January 1978.  He served in Germany from 18 February through on or about 28 November 1978.
3.  On 25 September 1978, he was convicted by a general court-martial of one specification each of wrongfully using a habit forming narcotic drug (heroin), having in his possession some amount of the habit forming narcotic drug, and transferring the habit forming narcotic drug on or about 1 May 1978.  He was sentenced to a reduction to pay grade E-1, a forfeiture of all pay and allowances, 10 months of confinement at hard labor, and a dishonorable discharge.

4.  On 17 November 1978, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, 3 months of confinement at hard labor, a forfeiture of $279.00 pay for 3 months, and a reduction to pay grade E-1 until after completion of appellate review.  

5.  On 15 March 1979, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

6.  There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case.

7.  Headquarters, U.S. Army Training Center and Fort Dix, NJ, General Court-Martial Order Number 16, dated 21 June 1979, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the sentence executed.

8.  Accordingly, he was discharged in pay grade E-1 on 13 July 1979 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of a general court-martial.  His service was characterized as under conditions other than honorable and a Bad Conduct Discharge Certificate was issued.  He was credited with completing 1 year, 10 months, and 8 days of active service and had 42 days of time lost.

9.  In a letter, dated 13 July 1979, mailed to his last known address, he was advised of his separation from the Army and provided copies of a DD Form 214 (Report of Separation from Active Duty), Bad Conduct Discharge Certificate, and two letters (Letter of Reason/Authority for Discharge and Letter of Debarment).

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 11 - An enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed. 
   b.  Paragraph 3-7a - An honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - A general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11.  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 change a court-martial 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 was convicted by a general court-martial and was sentenced to a bad conduct discharge.  His discharge was affirmed and he was discharged accordingly on 13 July 1979.

2.  He provided no evidence to show the charges were not valid and his discharge was unjust.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general or fully honorable discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.  

3.  Trial by court-martial was warranted by the offenses charged.  His 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.  Any redress by this Board of the finality of a court-marital 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 offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

5.  Also, the ABCMR does not correct records solely for the purpose of establishing entitlements to benefits.  Each case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  He will be provided copies of his DD Form 214, Bad Conduct Discharge Certificate, and separation letters with this Record of Proceedings.

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)                                         AR20140014189





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ABCMR Record of Proceedings (cont)                                         AR20140014189



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