IN THE CASE OF: BOARD DATE: 5 April 2016 DOCKET NUMBER: AR20150008311 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 5 April 2016 DOCKET NUMBER: AR20150008311 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. IN THE CASE OF: BOARD DATE: 5 April 2016 DOCKET NUMBER: AR20150008311 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 his bad conduct discharge (BCD) be upgraded to a general discharge. 2. The applicant states he suffered from depression while on active duty. He was caught with drugs in Germany that didn't belong to him. He tried to tell the officers that someone had given him a package to hold. He honestly did not know there were drugs in the bag. He is truly sorry for his actions. He is not asking for an honorable discharge, just a general discharge. 3. The applicant provides an 8 September 2015 Army Review Boards Agency letter and his email response, and a copy of a 29 September 1977 Standard Form 93 (Report of Medical History). 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 2 April 1974. He held military occupational specialty 11B (Infantryman). 3. His DA Form 2-1 (Personnel Qualification Record – Part II) shows in: a. Item 5 (Oversea Service) he served in Germany from 31 August 1974 through 18 May 1976. b. Item 9 (Awards, Decorations and Campaigns) he was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars. c. Item 18 (Appointments and Reductions), in part, he was advanced to private first class/E-3 on 1 November 1974 and reduced to private/E-2 on 30 October 1975. 4. He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 20 October 1975 for being absent without leave (AWOL) and for failing to go at the time prescribed to his appointed place of duty. 5. He was convicted by a general court-martial, conducted on 18 May 1976, in accordance with his pleas, of violation of the following articles of the Uniform Code of Military Justice (UCMJ): a. Article 92, violating a lawful general regulation by wrongfully possessing a controlled substance; and b. Article 134, one specification of wrongful possession of a habit forming narcotic to wit heroin and wrongful possession of marijuana in the hashish form and one specification of the wrongful possession of a residue of marijuana in the hashish form. 6. The court sentenced him to a BCD, reduction to private/E-1, confinement for 11 months, and forfeiture of all pay and allowances. The convening authority approved the sentence and indicated the forfeitures should apply to pay and allowanced becoming due on or after the date of this action. The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. Pending completion of the appellate review the applicant was to be confined in the U. S. Disciplinary Barracks, Fort Leavenworth, Kansas, or elsewhere as competent authority may direct. 7. General Court-Martial Order Number 141, Headquarters, U. S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 26 January 1977, shows that effective 15 December 1976, the unexecuted portion of the sentence to forfeiture of all pay and allowances was remitted, and the applicant, having served the period of confinement, was restored to duty pending completion of the appellate review. 8. A Joint Message Form states that as a result of consideration by the Army Clemency and Parole Board, dated 21 October 1976, "Effective 15 December 1976, the unexecuted portion of the sentence to confinement as promulgated in General Court-Martial Order Number 39, Department of the Army, Headquarters, 3D Armored Division, APO New York 09039, dated 16 July 1976, is remitted." 9. General Court-Martial Order Number 777, Headquarters, U. S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 25 August 1977, shows the sentence was affirmed. Article 71(c) of the UCMJ having been complied with, the BCD was ordered executed. 10. The applicant was discharged on 25 November 1977, with a characterization of service as UOTHC. He was issued a DD Form 259A (Bad Conduct Discharge Certificate). He had completed 3 years and 23 days of creditable active service. His DD Form 214 shows he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars. 11. He provided: a. An email note to an ARBA staff member in which he states cannot get any help from the Department of Veterans Affairs (VA) until his discharge is upgraded. He is very sick now and needs his discharge upgraded so he can apply for VA benefits. b. A 29 September 1977 Standard Form 93 in which he indicated he had several ailments including depression or excessive worrying and back pain. The physician notes record issues with venereal disease, scalp and skin issues, and occasional localized back pain that was once treated with a heating pad. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7b states 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. 2. 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 Army Board for Correction of Military Records 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: 1. The applicant requests his BCD be upgraded to a general discharge. He suffered from depression while on active duty. He was caught with drugs in Germany that he claims didn't belong to him. He is truly sorry for his actions. He is not asking for an honorable discharge, just a general discharge 2. There is no sufficiently convincing evidence showing the applicant suffered from depression while on active duty or that depression caused the misconduct that led to his receipt of an NJP and conviction by a general court-martial. 3. His trial by court-martial was warranted by the gravity of the offenses charged. The conviction and discharge were effected in accordance with applicable law and regulations and the applicant's discharge appropriately characterizes the misconduct for which he was convicted. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008311 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008311 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2