IN THE CASE OF:    

		BOARD DATE:  28 July 2015	  

		DOCKET NUMBER:  AR20140021135 


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 to a fully honorable discharge. 

2.  The applicant states he was personally discriminated against.  He would like to receive Department of Veterans Affairs benefits.

3.  The applicant provides:

* Department of Corrections Certificate of Completion
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* General Court-Martial Order Number 110, dated 10 November 1972
* General Court-Martial Orders Number 1100, dated 16 November 1973

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's records show he enlisted in the Regular Army on 18 April 1969 and he held military occupational specialty 94B (Cook).

3.  On 15 December 1969, while still in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for twice disobeying a lawful order, dereliction in the performance of his duties, and being absent without leave (AWOL) from 11 to 12 December 1969 

4.  He served in Vietnam from 17 July 1970 to 18 August 1970.  He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14 and M-16). 

5.  Following completion of his Vietnam tour, he was assigned to the 75th Engineer Battalion at Fort Meade, MD. 

6.  On 20 April 1972, he was arraigned and tried at a general court-martial for violating the UCMJ as follows: 

* Charge I, Article 135, one specification of attempting to wrongfully use heroin and one specification of wrongfully possessing narcotic paraphernalia
* Charge II, Article 134, one specification of wrongfully communicating a threat and one specification of wrongfully and unlawfully endeavor to influence the testimony of another individual by communicating a threat to kill him if he testified
* Additional Charge II, Article 81, one specification of conspiring with another individual to communicate a threat

7.  The Court found him guilty of one specification of attempting to use heroin, one specification of wrongfully possessing narcotic paraphernalia, and one specification of wrongfully communicating a threat.  The court sentenced him to confinement at hard labor for 2 years, forfeiture of all pay and allowances, and a bad conduct discharge. 

8.  On 10 November 1972, the convening authority approved his sentence and except for the bad conduct discharge, he ordered it executed.  Additionally, he ordered the record of trial forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.
9.  On 13 June 1973, the U.S. Army Court of Military Review affirmed the findings of guilty and sentence.

10.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 1100, dated 16 November 1973, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

11.  He was discharged from the Army on 29 November 1973.  His DD Form 214 shows he was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations) as a result of court-martial, with an under other than honorable conditions discharge.  He was issued a Bad Conduct Discharge Certificate.  It also shows he completed 2 years, 3 months, and 27 days of creditable active service during this period and he had 248 days of total lost time.

12.  On 13 December 1976, by letter, the ABCMR notified the applicant that in the absence of new and material evidence to show the existence of an error or an injustice in his records, further consideration of his case by the Board was not warranted.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority 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.

14.  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 was tried and convicted by a general court-martial of one specification each of attempting to use heroin, wrongfully possessing narcotic paraphernalia, and wrongfully communicating a threat.  The court sentenced him to confinement, forfeiture of pay, and a bad conduct discharge. 

2.  His trial by general court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  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.

3.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  The fact that he believes he was discriminated against, albeit unsupported by any evidence, does not negate the fact that he was convicted by a general court-martial or erase his crime.

4.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is an insufficient evidentiary basis for granting him an honorable or a general discharge.

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)                                         AR20140021135



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ABCMR Record of Proceedings (cont)                                         AR20140021135



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