IN THE CASE OF: BOARD DATE: 21 January 2010 DOCKET NUMBER: AR20090014301 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 that his bad conduct discharge (BCD) be upgraded to a more favorable discharge. 2. The applicant states, in effect, that he cannot remember the circumstances that led to his BCD; however, he knows it was drug related and that he did not have any or use any. He goes on to state that he requested a drug test and was not given one and that people spoke for him at his court-martial. He also states he was convicted and served his time. He continues by stating that he is 52 years of age and he is trying to set things straight. 3. The applicant provides a hand-written letter of explanation and a copy of 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 was born on 1 June 1957 and enlisted in the Regular Army in Charlotte, North Carolina on 28 September 1977 for a period of 3 years, training as an infantry indirect fire crewman, and assignment to Hawaii. He successfully completed his training and was transferred to Hawaii on 20 March 1978. He was advanced to the pay grade of E-4 on 28 November 1979. 3. On 31 March 1980, he reenlisted for a period of 3 years and training as a terminal operations coordinator. He departed Hawaii on 12 August 1980 and was transferred to Fort Eustis, Virginia to undergo his training. He completed his training and remained assigned to a transportation company at Fort Eustis, Virginia. 4. On 28 July 1982, the applicant was convicted, pursuant to his pleas, by a special court-martial of the wrongful sale, transfer, and possession of 4.59 grams of marijuana; and the wrongful sale, transfer and possession of 88.84 grams of marijuana. He was sentenced to a reduction to the pay grade of E-1, a forfeiture of $367.00 pay for 2 months, confinement at hard labor for 2 months, and a BCD. 5. On 4 May 1983, orders were published that announced the findings and sentence had been affirmed and directed that the applicant’s BCD be executed. 6. Accordingly, on 25 March 1985, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He had served 7 years, 4 months, and 7 days of total active service and he had 51 days of lost time due to imprisonment. 7. There is no evidence in the available records to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 8. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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. 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 discharge appropriately characterizes the misconduct for which the applicant was convicted. 2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case. 3. The applicant’s contentions were considered; however, he has failed to show through evidence submitted with his application or the evidence of record, that his discharge warrants an upgrade. 4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 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) AR20090014301 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090014301 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1