RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060015236 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Kenneth Wright

Chairperson

Mr. Patrick McGann

Member

Ms. Karmin Jenkins

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, that clemency be granted in the form of a general discharge. 

2.  The applicant states that there was no evidence, that it was his word against their word, and that they snitched to avoid a court-martial.  He states that he served over 20 years ago and would like to benefit from his service to his country.  He would like to apply for a home loan and a small business loan. 

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 20 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 6 January 1984.  The application submitted in this case is dated 20 October 2006.

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 enlisted on 2 September 1980 for a period of 4 years.  He successfully completed basic armor training and advanced individual training in military occupational specialty 19E (armor crewman).  

4.  On 4 March 1981, nonjudicial punishment was imposed against the applicant for possessing marijuana/hashish.  His punishment consisted of a reduction to 
E-2, a forfeiture of pay, restriction, and extra duty.  The portion of the punishment pertaining to the reduction to E-2 was suspended for a period of 90 days.  On 
8 June 1981, the suspended portion of the punishment was vacated.

5.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 
22 March 1982, states that the punishment of reduction to E-1 suspended for 
90 days, imposed on 12 June 1981, was set aside.  No other information is available. 

6. On 6 January 1983, nonjudicial punishment was imposed against the applicant for possessing drug paraphernalia.  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty.

7.  On 24 March 1983, in accordance with his pleas, the applicant was convicted by a special court-martial of two specifications of distributing marijuana in the hashish form and one specification of selling marijuana in the hashish form.  He was sentenced to be reduced to E-1, to forfeit $382 pay per month for 3 months, to be confined for 90 days, and to be discharged from the service with a bad conduct discharge.  On 2 May 1983, the convening authority approved the sentence.

8.  On 14 September 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

9.  The convening authority ordered the bad conduct discharge executed on 
14 December 1983.

10.  Accordingly, the applicant was discharged with a bad conduct discharge on 
6 January 1984 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served 3 years and 2 months of total active service with 74 days of lost time due to confinement.   

11.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states 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.

12.  Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or to take clemency action.

13.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions relate to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his special court-martial and appellate proceedings.   

2.  A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs benefits.

3.  The applicant’s record of service included not only the special court-martial conviction for distributing and selling marijuana in the hashish form, but earlier drug offenses that resulted in at least two nonjudicial punishments and 74 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, clemency in the form of a general discharge is not warranted in this case.

4.  Records show the applicant should have discovered the alleged injustice now under consideration on 6 January 1984, the date of his separation from the Army; therefore, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 5 January 1987.  However, the applicant has provided evidence to support his request for a grant of clemency based on good post-service conduct.  In view of the submitted evidence and since good post service conduct could only accrue subsequent to discharge from the Army, it is in the interest of justice to waive failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

KW____  _PM____  __KJ____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




____Kenneth Wright___
          CHAIRPERSON




INDEX

CASE ID
AR20060015236
SUFFIX

RECON

DATE BOARDED
20070510
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19840106
DISCHARGE AUTHORITY
AR 635-200 Chapter 3
DISCHARGE REASON
As a result of a court-martial
BOARD DECISION
NC
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.