RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20070000186 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Kathleen Newman

Chairperson

Ms. Susan Powers

Member

Mr. Edward Montgomery

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 he made a mistake and has been a model citizen since [then].

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 10 March 1986.  The application submitted in this case is dated 12 December 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 13 February 1979 for a period of 3 years.  He successfully completed One Station Unit Training in military occupational specialty 11C (indirect fire infantryman).  On 16 August 1981, he was honorably discharged for immediate reenlistment.  On 17 August 1981, the applicant reenlisted for a period of 5 years.  He attained the rank of sergeant on 1 June 1983.

4.  On 30 May 1985, in accordance with his pleas, the applicant was convicted by a general court-martial of two specifications of distributing marijuana in the hashish form.  He was sentenced to be reduced to E-1, forfeiture of all pay and allowances, to be confined for 4 years, and to be discharged from the service with a bad conduct discharge.  On 19 July 1985, the convening authority approved only so much of the sentence as provided for confinement for 10 months, forfeiture of all pay and allowances, reduction to E-1, and a bad conduct discharge.

5.  On 12 November 1985, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.    
6.  On 27 February 1986, the General Court-Martial Convening Authority ordered the bad conduct discharge to be executed.

7.  Accordingly, the applicant was discharged on 10 March 1986 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He was issued a bad conduct discharge.  He had served a total of 6 years, 
5 months, and 1 day of total active service with 239 days of lost time due to confinement.

8.  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. 

9.  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.

10.  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, a sergeant, was discharged with a bad conduct discharge for distributing marijuana on two separate occasions.  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.

2.  Records show the applicant should have discovered the alleged injustice now under consideration on 10 March 1986, 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 9 March 1989.  Although the applicant is requesting a grant of clemency based on good post-service conduct, he has not provided any evidence of post-service achievement or good conduct.  In the absence of such evidence, it is in the interest of justice to excuse the applicant’s failure to timely file within the 3-year statute of limitations.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

KN_____  __SP____  __EM____  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.


__Kathleen Newman_____
          CHAIRPERSON




INDEX

CASE ID
AR20070000186
SUFFIX

RECON

DATE BOARDED
20070710
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19860310
DISCHARGE AUTHORITY
AR 635-200 Chapter 3
DISCHARGE REASON
As a result of court-martial
BOARD DECISION
NC
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.