RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 August 2007
	DOCKET NUMBER:  AR20070001290 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. Rodney E. Barber

Member

Mr. Rowland C. Heflin

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 his bad conduct discharge be upgraded to a general or an honorable discharge.

2.  The applicant states, in effect, that he was a teenager who made a very bad choice while he was in the military.  He states he has never been in trouble before and has not been in trouble since his discharge.  He asked that his discharge be upgraded.

3.  The applicant does not provide any additional documentation.

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’s records show he entered active duty on 3 January 1977.  He attended basic combat training and advanced individual training and was awarded the military occupational specialty 11E1O (Armor Crewman).

3.  His records show he served with Delta Troop, 1st Squadron, 4th Cavalry, Fort Riley, Kansas.

4.  On 20 December 1979, the applicant was convicted contrary to his pleas by a special court-martial of four specifications of possession and sale of marijuana twice, once on 21 August 1979, and once on 4 September 1979.  His sentence consisted of forfeiture of $250.00 per month for four months, a bad conduct discharge, confinement for four months, and reduction from specialist five/pay grade E-5 to private/pay grade E-1.

5. On 21 March 1980, the sentence was approved as adjudged pending completion of appellate review. 
6.  On 16 June 1980, the United States Army Court of Military Review (ACMR) affirmed the court-martial’s finding of guilty and sentence. 

7.  On 3 November 1980, the applicant's bad conduct discharge was ordered to be executed.  The portion of the sentence pertaining to the confinement had been served.

8.  On 21 April 1981, the applicant was discharged as a result of a court-martial.  He had completed 4 years and 18 days of active service.

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200, in effect, at the time sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will 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 affirmed sentence ordered duly executed.

11.  Court-martial convictions stand as adjudged or as modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (ABCMR) 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.  The applicant requested that his bad conduct discharge be upgraded to a general or an honorable discharge.

2.  Although, the applicant states that he was a teenager who made a very bad choice while he was in the military and he has not been in trouble since his discharge, his length of service and pay grade of E-5 would certainly indicate that the applicant had the maturity to understand the seriousness of his actions.

3.  It must be presumed that the applicant's entire military record was considered by his court-martial during his trial.  As such, the bad conduct discharge was the appropriate characterization of service.
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.  Therefore, he is not entitled to correction of his records to show a general discharge or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___pms__  ___reb__  ____rch__  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.




_________Paul M. Smith________
          CHAIRPERSON




INDEX

CASE ID
AR20070001290
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070001290
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.