IN THE CASE OF:	  

		BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20140021297


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 (BCD).  

2.  The applicant states, in effect, that his case was an isolated incident and that there were no alcohol/drug treatment services available at the time of his service.  He states he also received three Army Good Conduct Medals.   

3.  The applicant provides the following documents:

* Permanent Orders 25-10, dated 1 June 1982, awarding him the Army Good Conduct Medal (3rd Award) for the period 29 October 1978 to 
28 October 1981
* Permanent Orders 18-2, dated 8 February 1979, awarding him the Army Good Conduct Medal (Second Award) for the period 30 October 1975 to 29 October 1978
* 3 letters of appreciation
* a letter of recommendation
* a Certificate of Achievement from Headquarters, III Corps Artillery, dated   1 April 1980
* an Enlisted Evaluation Report for the reporting period July 1981 to November 1981 
* a Scroll of Appreciation 
* 3 German marksmanship documents (in German) 



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 31 October 1972 for a period of 4 years.  He completed training and was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).  On 6 August 1974, he reenlisted for a period of 6 years.  On or about 14 January 1981, he was reclassified to MOS 55G (Nuclear Weapons Maintenance Specialist).  The highest rank/grade he attained during his period of service was staff sergeant/E-6.  

3.  He accepted nonjudicial punishment on:

* 6 July 1982 – for failing to go to his appointed place of duty on or about 
18 June 1982 and being absent without leave (AWOL) from on or about 18 June 1982 to on or about 21 June 1982
* 29 July 1982 – for wrongfully fraternizing with an enlisted woman not his wife and subordinate to him by kissing her and engaging in sexual intercourse with her on or about 26 February to on or about 5 April 1982
* 12 November 1982 – for failing to go to his appointed place of duty on or about 31 October 1982 and being AWOL from on or about 31 October 1982 to on or about 1 November 1982
* 21 January 1983 – for driving while drunk and reckless driving and being drunk and disorderly with derogatory remarks toward military police

4.  On 15 June 1983, before a special court-martial at Frankfurt, Federal Republic of Germany, he was convicted of: 

* one specification of Charge I for violating Article 86, Uniform Code of Military Justice (UCMJ), for being AWOL on or about 25 March 1983 to on or about 1 June 1983
* one specification of Charge II for violating Article 109, UCMJ, on or about 28 March 1983, for willfully and wrongfully damaging by striking with a broom two house windows of a value of about $167.00, the property of citizens of the Federal Republic of Germany
* one specification of Charge III for violating Article 134, UCMJ, on or about 28 March 1983, for disorderly conduct in a public place in the Federal Republic of Germany

The court sentenced him to reduction to private/E-1, forfeiture of $334.00 pay per month for 2 months, confinement with hard labor for a period of 67 days and to be discharged from the Army with a BCD.  The sentence was adjudged on 
17 June 1983.

5.  Special Court-Martial Order Number 106, dated 3 August 1983, shows the convening authority approved the sentence.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review (ACMR).

6.  On 13 January 1986, before the ACMR, the applicant argued that he was deprived of character witnesses and thereby denied a fair sentencing hearing.  The ACMR returned the record of trial back to the Judge Advocate General for transmission to a different convening authority to take action.

7.  Special Court-Martial Order Number 23, dated 10 July 1986, issued by Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth, KS, shows another court-martial reviewed his case and approved the same sentence as outlined in the previous court-martial.  The record of trial was again forwarded to The Judge Advocate General of the Army for review by the ACMR.  

8.  On 30 January 1987, the ACMR affirmed the approved findings of guilty and the sentence.    

9.  Special Court-Martial Order Number 140, Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, dated 25 April 1988, shows that, all provisions having been complied with, the sentence was to be executed.  The applicant was on excess leave without pay.  

10.  On 20 May 1988, the applicant was discharged in accordance with the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11.  His DD Form 214 shows he was discharged as a result of court-martial with a BCD.  This form further shows he completed a total of 3 years, 6 months, and 1 day of net active service this period with approximately 111 days of time lost.


11.   The applicant provides the following documents that attest to his service prior to the incidents that resulted in his BCD:

* Permanent Orders 25-10, dated 1 June 1982, awarding him the Army Good Conduct Medal (3rd Award) for the period 29 October 1978 to 
28 October 1981
* Permanent Orders 18-2, dated 8 February 1979, awarding him the Army Good Conduct Medal (Second Award) for the period 30 October 1975 to 29 October 1978
* 3 letters of appreciation
* a letter of recommendation
* a Certificate of Achievement from Headquarters, III Corps Artillery, dated   1 April 1980
* an Enlisted Evaluation Report for the period July 1981 to November 1981 
* a Scroll of Appreciation 
* 3 German marksmanship documents (in German) 

12.  A review of the applicant's available records reveals no self-referral or command referral to an alcohol/drug counseling treatment program nor does he provide any documentation relating to an alcohol/drug substance abuse issue.  

13.  On 28 September 1971, Public Law 92-129 mandated that a program be initiated for the identification and treatment of drug and alcohol dependent persons in the Armed Forces.  As directed, the Army implemented its program in 1972, and in May 1976 consolidated all its policies, procedures and responsibilities into Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program).

14.  Army Regulation 635-200:

	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.

	c.  Paragraph 3-11 provides that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

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 applicant's request for an upgrade of his BCD was carefully considered.  

2.  He provides documents that appear to show he performed his duties in the manner expected of a Soldier and leader, and his performance was duly noted by his superiors at the time.  However, the character of his service is not sufficiently mitigating to warrant clemency with regard to the misconduct that resulted in his discharge.

3.  The applicant further states that no alcohol or drug treatment services were available at the time of his incident.  He provides no documentation that he was not offered or that he self-referred to seek any medical services or assistance from his chain of command related to his drunken driving charge.  The Army had policies, procedures and services in place at the time of the applicant's incidents that he could have utilized.        

4.  He contends his discharge was based on one isolated incident.  However, there were numerous transgressions in his record and more than one charge brought against him in his trial by court-martial.  

5.  His conviction and discharge were effected in accordance with applicable law and regulations.  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.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.


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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20140021297



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