IN THE CASE OF:	   

		BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20150002694 


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, in effect, correction of his military records by upgrading his bad conduct discharge.

2.  The applicant states he was treated unfairly.  He contends that the doctor gave him the wrong medication which he took for 20 years before doctors discovered the mistake.  He was not crazy.  He is currently in prison for something he did not do.

3.  The applicant provides no additional documentation.

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.  On 19 December 1972, the applicant enlisted in the Regular Army.  He completed his initial training as a cook.

3.  On 19 April 1973, the applicant was advanced to private, pay grade E-2.

4.  On 9 July 1973, the applicant accepted nonjudicial punishment for willfully disobeying a lawful order from his superior noncommissioned officer (NCO) to properly maintain his area in the billets by failing to do so.

5.  General Court-Martial Order Number 31, 4th Infantry Division, dated 
22 March 1974 shows the applicant was convicted on 11 December 1973 of violating Articles 91, 92, and 134 of the Uniform code of Military Justice (UCMJ) for:

* Disobeying a lawful order on two occasions
* Disobeying an NCO
* Possessing marijuana
* Using marijuana
   
6.  The applicant’s sentence, included:

	a.  reduction to private, pay grade E-1;

	b.  a forfeiture of $175.00 pay per month for 6 months;

	c.  confinement for 6 months; and

	d.  a bad conduct discharge.

7.  General Court-Martial Order Number 32, 4th Infantry Division, dated 
22 March 1974 shows the applicant was convicted on 19 February 1974 of violating Articles 90, 91, and 134 of the Uniform code of Military Justice (UCMJ) for:

* Disrespect on multiple occasions to a superior NCO
* Communicating a threat
* Disobey a superior commissioned officer
   
8.  The applicant’s sentence, included:

	a.  confinement for 6 months; and

	b.  a bad conduct discharge.
9.  On 22 March 1974, the convening authority approved the sentence for both general courts-martial discussed above.

10.  General Court-Martial Order Number 1020, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 11 September 1974, announced the sentence promulgated in General Court-Martial Order Number 32 had been affirmed.  Article 71(c) having been complied with, and the sentence to confinement having been completed, that portion of the sentence pertaining to a dishonorable discharge was to be executed.

11.  General Court-Martial Order Number 1052, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 18 September 1974, announced the sentence promulgated in General Court-Martial Order Number 31 had been affirmed.  Article 71(c) having been complied with, and the sentence to confinement having been completed, that portion of the sentence pertaining to a dishonorable discharge was to be executed.

12.  The applicant's DD Form 214, shows that he was discharged from the Regular Army on 20 September 1974 under the provisions of Army Regulation 
635-200, paragraph 11-2, due to court-martial.  He received an under other than honorable conditions characterization of service.

13.  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 contends that his military records should be corrected by upgrading his bad conduct discharge because he was treated unfairly and was given the wrong medicine.

2.  Trial by 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 final discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  There is no substantive evidence available showing the applicant suffered from a medical/mental condition that was in anyway responsible for his misconduct and criminal behavior.

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 the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the above, the applicant’s request should be denied.

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)                                         AR20130022331



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ABCMR Record of Proceedings (cont)                                         AR20150002694



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