RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  9 August 2007
	DOCKET NUMBER:  AR20070001844 


	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. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Ms. Rea N. Nuppenau

Member

Mr. Dennis J. Phillips

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 that his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his record is not in error or unjust, but would like his discharge upgraded based on the length of time since he was discharged and living a life worthy of an upgrade.

3.  The applicant provides no additional documentary evidence and defers to his military record for information in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 29 December 1986, the date of his discharge.  The application submitted in this case is dated 23 January 2007.

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 records show that he enlisted in the Regular Army on 2 November 1982.  He completed basic training and advanced individual training and was awarded the military occupational specialty (MOS) 11B (Infantryman).  The highest grade the applicant held was specialist/pay grade E-4.

4.  The applicant's military record shows he received the Army Achievement Medal, Army of Occupation Medal (Germany), Expert Infantryman Badge, Army Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars, and the Marksman Marksmanship Qualification Badge with Pistol Bar for qualifying with the .45 Caliber Pistol.  

5.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  

6.  On 2 July 1985, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey orders not to consume alcoholic beverages in the barracks.  His punishment consisted of a forfeiture of $177.00 per month for one month, reduction to the rank of private first class/pay grade E-3, 14 days of restriction and 14 days of extra duty.  The applicant appealed the punishment, which was denied on 2 July 1985.  

7.  On 17 July 1985, the applicant accepted an Article 15, under UCMJ, for the wrongful overindulgence of intoxicating liquor and/or drugs, and being incapacitated to complete the proper performance of his duties.  His punishment consisted of a forfeiture of $162.00 per month for one month, reduction to the rank of private/pay grade E-2, 14 days of restriction, and 14 days of extra duty.  The applicant appealed the punishment, which was denied on 17 July 1985.  

8.  On 30 September 1985, the applicant pled guilty at a General Court-Martial to the following specifications:  knowingly and wrongfully using marijuana during the period February 1983 through February 1984; wrongful distribution of an unknown quantify of marijuana on or about 15 June 1985 to another Soldier in the rank of private/pay grade E-2; wrongful use of marijuana during the period April 1985 through July 1985; and wrongful use of cocaine during the period June 1985 through July 1985.  The Court sentenced the applicant to forfeiture of all pay and allowances, reduction to the rank of private/pay grade E-1, confinement for 18 months, and a bad conduct discharge.

9.  On 15 November 1985, the convening authority approved only so much of the sentence extending to forfeiture of all pay and allowances, reduction to the rank of private/pay grade E-1, confinement for 1 year, and a bad conduct discharge.

10.  On 5 March 1986, United States Army Court of Military Review affirmed the findings of guilty and sentence as approved by the convening authority.

11.  DA Form 4187 (Personnel Action), dated 11 July 1985, shows the applicant's duty status changed from confined by military authorities to present for duty.

12.  Evidence of record shows that on 14 July 1986, the applicant was granted indefinite excess leave status to go home awaiting appellate review and separation processing.

13.  Department of the Army, Headquarters, United States Army Armor Center, Fort Knox, Kentucky, General Court-Martial Order Number 64, dated 18 November 1986, announced the applicant's sentence had been affirmed and 
the provisions of Article 71c, Uniform Code of Military Justice, had been complied with.  The Convening Authority ordered the sentence including the bad conduct discharge executed.

14.  The applicant's DD Form 214 shows that he was discharged as a result of court-martial on 29 December 1986, under the provisions of Army Regulation 
635-200 (Personnel Separations), with the separation code JJD and the Reentry codes 3B, 3C and 3.  This form further shows the applicant's character of service as bad conduct.  This DD Form 214 also shows the applicant had 280 days of time lost due to confinement during his military service.

15.  Army Regulation 635-200 (Personnel Separations) provides for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial imposing a bad conduct discharge.  

16.  Court-martial convictions stand as adjudged or 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 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.

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

18.  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 contention that his discharge should be upgraded based on the time that has elapsed since his discharge was carefully considered and determined to be without merit.

2.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

3.  The applicant's records clearly show he was tried and convicted by a General Court-Martial for possession, distribution, and use of marijuana and cocaine.

4.  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.  

5.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

6.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of a general or an honorable discharge.

7.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

8.  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.

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 December 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
28 December 1989.  The applicant did not 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

_RNN___  _JCR__ _  _DJP____  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.




_Jeffrey C. Redmann_
          CHAIRPERSON




INDEX

CASE ID
AR20070001844
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
1986/12/29
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON
as a result of court martial, other
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.