RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 October 2005
	DOCKET NUMBER:  AR20050001625 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Ms. Judy L Blanchard

Analyst

The following members, a quorum, were present:


Mr. Ted S. Kanamine

Chairperson

Mr. Patrick H. McGann, Jr.

Member

Ms. Carol A. Kornhoff

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his Bad Conduct Discharge (BCD).  

2.  The applicant states, in effect, that consideration should be given to the following facts:  He is now an upstanding U.S. citizen who fully supports our military and U.S. government in all endeavors.  He made an error in judgment at a very young age (21 years old) and that he is extremely remorseful.  He made wrong choices and subsequently suffered the hardship and indignity of receiving a bad conduct discharge due to possession of Marijuana.  The applicant states that the mitigating circumstances are: that he was young; in a foreign country, experiencing foreign culture; and surrounded by peers from different backgrounds.  He did not adjust well psychologically to this type of environment.  Aside from that one incident, he believes that he was an outstanding Soldier, who served with distinction and honor.  Since his discharge, he has been an upstanding citizen in the community.  He has been married for over ten years and has three children.  He coaches Little League baseball and has continued to work to improve himself in the community.  He attended the University of Southern Florida and obtained the Bail Bondsman and Florida Surety Agent Certification, which entailed over 120 hours of instruction in the Criminal Justice Field.  In order for him to continue with his endeavors and meet his goal of becoming an employee in the Criminal Justice Field, it is necessary for him to initiate this request for a discharge review, in order for him to continue with his internship.  He attends church with his family.  He volunteered and assisted his community in Hurricane Charley in 2004 and is presently looking for other volunteer opportunities to serve his country and state.  He believes that in all his endeavors, both good and bad, he has labored to be honest, just and forthright, no matter how difficult the circumstances or harsh the penalty.  He believes that he has paid his debt for his mistakes made very early in my life.  It is very important that in order for him to continue leading a considerate, productive life serving his community, that he be given an opportunity to overcome the barrier of his discharge.  

3.  The applicant provides a copy of his record of trial, a copy of his DD Form 214, a self-authored letter and a letter of support from his wife.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 28 April 1988.  The application submitted in this case was received on 31 January 2005.   
2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows that he enlisted in the Regular Army and entered active duty on 10 January 1984.  He was trained in, awarded and served in military occupational specialty (MOS) 13B10 (Cannon Crewmember) and the highest rank he attained while serving on active duty was specialist/pay grade 
E-4.

4.  On 2 January 1986, the applicant accepted nonjudicial punishment (NJP) for leaving his guard post while on guard duty.  His imposed punishment was a reduction to pay grade E-3, a forfeiture of $100.00 pay per month for 3 months, 14 days restriction and extra duty.

5.  On 19 June 1986, the applicant was formally counseled for leaving his weapon unsecured.

6.  On 10 July 1986, the applicant accepted NJP for dereliction in the performance of duty.  His imposed punishment was a reduction to pay grade E-3 (suspended for 60 days), a forfeiture of 7 days pay (suspended for 60 days) and 14 days extra duty.

7.  It appears that the applicant was advanced back to the pay grade of E-4 during the time between his two NJP actions; however, the date of advancement is not in the available records.

8.  On or about 4 December 1986, the applicant and another Soldier falsified two border crossing instruments and departed Germany en route to Amsterdam, the Netherlands.  While in Amsterdam, they purchased 137.1 grams of Marijuana.  

9.  On or about 5 December 1986, during a routine German border crossing check the applicant and his companion were asked if they had anything to declare to which both replied in the negative.  During the subsequent search of their car, luggage and bodies search, German Customs Officials found, with the help of a drug detection dog a brown plastic bag filled with white talcum powder. Hidden inside were three different size packages containing about 147 grams of Marijuana (gross).  A field test conducted on the green substance found in their car was positive for Marijuana.  The drugs were seized and criminal procedures were initiated against them for suspected violation of the German Narcotics Act.  According to regulation, they were advised of their rights.      

10.  On 8 December 1986, the seized drugs were forwarded to the U.S. Army Crime Laboratory for analysis.  On 29 December 1986, laboratory analysis revealed the seized substance was Marijuana. 

11.  On 26 January 1987, court-martial charges were preferred against the applicant for failure to obey a lawful regulation by wrongfully crossing the Netherlands border without a valid border instrument and for the wrongful possession of 137.1 grams of Marijuana, a controlled substance, with the intent to distribute said controlled substance.  

12.  On 13 May 1987, the applicant was convicted at a General Court-Martial convened by United States Army, Headquarters, 3d Armored Division, APO New York, of failure to obey a lawful general regulation by wrongfully crossing the Netherlands border without a valid border crossing instrument and the wrongful possession of 137.1 grams of Marijuana with the intent to distribute.  The applicant was sentenced to a BCD, confinement at hard labor for a period of one year, a forfeiture of all pay and allowances and a reduction to the rank of private/pay grade E-1.  The convening authority approved the sentence on 
2 July 1987 and the record of trial was forwarded to The Judge Advocate General of the Army for review by the Army Court of Military Review.  On 
19 October 1987, the United States Army Court of Military Review affirmed the sentence and the findings of guilty and ordered it duly executed.  The record indicates that the applicant waived his rights to a review from the United States Court of Military Appeals. 

13.  On 5 November 1987, the applicant underwent a medical examination and was found fit for retention. 

14.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 28 April 1988 under the provisions of Army Regulation
635-200, chapter 3, as a result of a court-martial with a BCD.  He had completed 
3 years, 6 months, and 8 days of creditable active military service.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

16.  Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge should be upgraded because he was young and did not adjust well psychologically were carefully considered and found to be insufficient evidence in supporting his request.  The applicant’s record shows that he was 21 years of age at the time of the offenses.  There is no evidence that indicates that he was any less mature than any other Soldier of the same age who successfully completed military service.  

2.  The applicant contends that he did not adjust well psychologically to his environment.  There is no medical evidence nor has the applicant provided any medical evidence to show that he had adjustment problems or asked for help at anytime before committing the offense that led to his discharge.  Therefore, given the circumstances in this case and his overall undistinguished record of service, there is insufficient evidence to support his claim. 

3.  The applicant’s contentions regarding his good post service conduct and achievements were carefully considered.  The applicant’s good post service conduct is commendable, but is not so meritorious as to warrant an upgrade of his discharge. 

4.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and his rights were protected throughout the court-martial process.  

5.  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.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 April 1988.  Therefore, the time for him to file a request for correction of any error or injustice expired on 27 April 1991.  However, he failed to file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__TSK __  __PHM__  __CAK __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




____Ted S. Kanamine____
          CHAIRPERSON




INDEX

CASE ID
AR20050001625
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20051013
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.