BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20150001127 


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 general discharge under honorable conditions.

2.  The applicant states:

* he participated in undercover work
* injuries from his first enlistment require attention
* his lawyer told him his discharge would automatically be upgraded after 2 years because he brought a Yugoslavian soldier who was absent without leave (AWOL) and wanted to defect in to American authorities
* when German police and American military police came to his house he asked whose jurisdiction he fell under, at which point the German police left
* the military police produced a search warrant signed by the deputy commander, which was unauthorized
* he served one enlistment under honorable conditions
* he served with Headquarters, 7th Special Forces, and Headquarters, 5th Signal Command, both of which fall under the North Atlantic Treaty Organization
* he was young and his wife had just given birth to their second daughter, thus he wanted to move them over to Germany with him

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 9 May 1975.  On 29 June 1977, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 30 June 1977.

3.  On 25 April 1978 date, he was arraigned and tried by a general court-martial in Mannheim, Germany, wherein:

	a.  he was charged with two specifications of violating Article 134 of the Uniform Code of Military Justice by selling a controlled substance, to wit:  95.67 grams of marijuana in the hashish form, and for possession of a controlled substance, to wit:  632.24 grams of marijuana in the hashish form, on or about 4 February 1978; and

	b.  he was found guilty of both specifications.

4.  Headquarters, 21st Support Command, General Court-Martial Order Number 43, dated 20 July 1978, sentenced him to separation from the service with a bad conduct discharge, confinement at hard labor for 9 months, and reduction to the rank/grade of private (PV1)/E-1.  The convening authority approved his sentence of reduction to the rank/grade of PV1/E-1 and issuance of a bad conduct discharge.

5.  General Court-Martial Order Number 43 shows the record of trial would be forwarded to the Judge Advocate General of the Army for the U.S. Army Court of Military Review affirmation and approval of the findings of guilty and the sentence in his court-martial.  On 5 September 1978, the applicant requested placement in an indefinite excess leave status pending completion of all required post-trial and appellate reviews.  The orders showing the U.S. Army Court of Military Review's affirmation of the findings of guilt and sentence in the applicant's court-martial are not in his available service records for review.

6.  On 23 November 1979, he was discharged in accordance with the sentence of his court-martial.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial and issued a bad conduct discharge.  He completed a total of 4 years, 6 months, and 14 days of net active service.

7.  The complete facts and circumstances leading up to the applicant's court-martial are not in his available records for review.  However, there is no evidence of record and the applicant has not provided any evidence corroborating his contention that his court-martial for the possession and sale of a controlled substance was in any way related to authorized undercover work he was performing for the Army, that the search warrant executed by the military police was improper, or that he was informed his discharge would be automatically upgraded due to his assistance with an AWOL Yugoslavian soldier wishing to defect to the United States.

8.  Army Regulation 635-200 sets 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.

	c.  Paragraph 3-10 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It 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.

9.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his bad conduct discharge to a general discharge under honorable conditions was carefully considered but found to be without merit.  He was given a bad conduct discharge pursuant to an approved sentence by a general court-martial that was warranted by the gravity of the offenses with which he was charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.

2.  The applicant's complete military records are not available for review.  It is incumbent upon the applicant to provide a compelling argument supported by corroborating documentation to show his records are in need of correction based on an injustice or inequity.  In the absence of such evidence, administrative regularity is presumed regarding the circumstances leading up to his court-martial and subsequent discharge.

3.  There is no indication that all requirements of law and regulation were not met and his rights were not fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  In this case, the severity of the imposed sentence has been deemed appropriate.

4.  The U.S. Army has never had a policy where a discharge was automatically upgraded based on the passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or her character of service.  The ABCMR warrants changes only if it is determined that the characterization of service or the reason for discharge, or both, was improper and inequitable.

5.  In view of the foregoing evidence, there is an insufficient 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 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)                                         AR20150001127



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ABCMR Record of Proceedings (cont)                                         AR20150001127



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