BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140016079 


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 be upgraded.  

2.  The applicant states he served 9 years under honorable conditions and he was the youngest staff sergeant while he was stationed in Panama.  He was having problems at home because his wife had left him and he got into the wrong things trying to escape his problems.  

3.  The applicant provides a DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 12 June 1981, and a DD Form 214 (Report of Separation from Active Duty) for the period ending 9 February 1976.

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 30 April 1974.  He reenlisted on 10 February 1976 for a period of 6 years.  On 12 June 1981, he reenlisted for a period of 3 years.  

3.  On 13 March 1984, he was found guilty, in accordance with his pleas, by a general court-martial of wrongfully distributing about .7 grams of cocaine and of wrongfully possessing and distributing about 1.12 grams of cocaine.  The offenses took place inside Fort Gulick, Republic of Panama, an installation under U.S. military control.

4.  The sentence consisted of confinement at hard labor for 4 years, a forfeiture of $1,000 pay for 4 years, reduction to the rank/grade of private/E-1, and a bad conduct discharge.

5.  On 9 July 1984, the U.S. Army Court of Military Review affirmed the findings and the sentence.

6.  On 19 September 1984, the U.S. Court of Military Appeals denied the petition for a review of the decision of the U.S. Army Court of Military Review.

7.  U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 724, dated 16 October 1984, shows that only so much of the sentence as provided for a bad conduct discharge, a forfeiture of $430 pay for
4 years, confinement at hard labor for 4 years (but the execution of that portion thereof adjudging confinement in excess of hard labor for 30 months was suspended for 30 months), and reduction to the rank/grade of private/E-1 was affirmed.  That modified sentence having been affirmed and the provisions of Article 71c having been complied with, the sentence was ordered to be executed.

8.  Accordingly, on 5 December 1984, he was discharged as a result of a court-martial with a bad conduct discharge.

9.  Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-11 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.

	c.  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.  The applicant's request for an upgrade of his bad conduct discharge has been carefully considered.  

2.  The evidence shows the trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the final discharge appropriately characterized the misconduct for which he was convicted.

3.  His record of indiscipline includes a general court-martial conviction for wrongful possession and distribution of cocaine within the limits of a U.S. military installation.  Based on the seriousness of his misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

4.  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 seriousness of his criminal offenses and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.


5.  The applicant's argument that he was having family problems was noted; however, without evidence showing error or injustice in his discharge proceedings and/or the characterization of his service, there is no basis for granting 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)                                         AR20140016079



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ABCMR Record of Proceedings (cont)                                         AR20140016079



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