RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  23 August 2007
	DOCKET NUMBER:  AR20070002633 


	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. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. John T. Meixell

Member

Mr. Richard T. Dunbar

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, upgrade of his Bad Conduct Discharge.

2.  The applicant states, in effect, that he completed basic combat training at Fort McClellan, Alabama in January 1980; was assigned to Fort Lee, Virginia in 1980; assigned to Fort Monroe, Virginia in 1983; and then reassigned overseas to Germany in late 1983 where he served until September 1985.  The applicant also states, in effect, that he was young, dumb, and innocent, so he took a plea bargain in order to avoid jail time.  He concludes by stating, in effect, that he has health problems, was recently accepted by the Veterans Administration (VA), and respectfully requests expeditious action on his application.

3.  The applicant provides three self-authored statements, dated 14 March 2007, and 24 May 2007 and one undated statement; DD Form 2 (U.S. Armed Forces Identification Card); and a photograph (presumably of the applicant) in a U.S. Army uniform with Military Policeman (MP) uniform items.

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 enlisted in the U.S. Army Reserve on 13 September 1979 and entered active duty in the Regular Army for a period of 3 years on 29 January 1980.  His enlistment documents show his date of birth as 5 August 1961.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 95B (Military Policeman).  The highest rank the applicant attained was sergeant (SGT)/pay grade E-5.  The applicant’s records show that he reenlisted in the Army on
3 January 1983 for a period of 3 years.  The applicant’s records also show that he served 11 months in Germany from 7 August 1984 until 24 July 1985 and that he served continuously on active duty until his discharge on 26 March 1986.
3.  The applicant’s military service records document no acts of valor, significant achievement, or service warranting special recognition.

4.  On 12 July 1985, the applicant was convicted at a special-court martial convened by Headquarters, 3rd Infantry Division (Germany), for wrongful distribution of 0.43 grams, more or less, of marijuana in the hashish form, on or about 7 May 1985, and wrongful distribution of 0.18 grams, more or less, of marijuana in the hashish form, on or about 26 April 1985.  His punishment was a bad conduct discharge, confinement for 6 months, and reduction to the grade of private (E-1).

5.  The applicant's military service records contain a DD Form 497 (Confinement Order), dated 12 July 1985, issued as a result of his court-martial.  This document shows that, on or about 7 May 1985 and on or about 26 April 1985, the applicant violated Article 112a (i.e., wrongful distribution of hashish).

6.  The applicant's military service records contain a copy of Headquarters,
3rd Infantry Division (Germany), Office of the Staff Judge Advocate, Report of Result of Trial, addressed to the Commander, 3rd Infantry Division (Germany), the Special Court-Martial Convening Authority (SPCMCA).  This document shows, in pertinent part, the contents of a pretrial agreement concerning the sentence, which states, “Confinement over 80 days shall be disapproved.”  This document also shows the number of days of the applicant’s pre-sentence confinement and states, “26 days administratively credited by the military judge.”

7.  Headquarters, 3rd Infantry Division (Germany), Special Court-Martial Order Number 39, dated 21 August 1985, promulgated the results of the court-martial.  This document shows that only so much of the sentence as provided for a bad conduct discharge, confinement for 80 days, and reduction to the grade of private (E-1) was approved and executed by the convening authority, except for the part of the sentence extending to a bad conduct discharge.  In addition, the convening authority credited the applicant with 26 days of restriction tantamount to confinement against the sentence to confinement.

8.  The applicant's military service records contain a copy of Headquarters, U.S. Army Confinement Facility, Mannheim (Germany), Orders 33-34, dated 24 July 1985, which show, in pertinent part, that the applicant was directed to travel under escort of necessary guards, from Germany to the U.S. Army Personnel Control Facility, Fort Dix, New Jersey, on 24 July 1985.


9.  The applicant's military service records contain a DA Form 4187 (Personnel Action), dated 21 August 1985, that shows the applicant’s duty status was changed from present for duty (PDY) to confined military authorities (CMA), effective 12 July 1985.

10.  The applicant's military service records contain another DA Form 4187, dated 21 August 1985, that shows the applicant’s duty status was changed from CMA to PDY, effective 21 August 1985.

11.  The applicant's military service record does not reflect the subsequent action by the United States Army Court of Military Review or Court of Military Appeals, if any.  However, the subsequent action by the convening authority on 30 January 1986, directing execution of the Bad Conduct Discharge, indicates all required appellate reviews were conducted.

12.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, Special Court-Martial Order Number 16, dated 30 January 1986.  This order shows, in pertinent part, that the applicant's sentence to reduction to the grade of private (E-1), confinement for 80 days (and credit with 26 days of restriction tantamount to confinement against the sentence to confinement), and bad conduct discharge, which was adjudged on 12 July 1985, was affirmed.  This document also provides, in pertinent part, that Article 71(c) having been complied with, the bad conduct discharge would be executed.  This document further shows that the sentence pertaining to confinement had been served.

13.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a bad conduct discharge on
26 March 1985 under the provisions of Army Regulation 635-200, Chapter 3, section IV.  Item 29 (Dates of Time Lost During This Period) shows the period of the applicant’s confinement was from 12 July 1985 through 20 August 1985.  This document also shows that, at the time of his discharge, the applicant was credited with completing 6 years and 19 days net active service and 4 months and 16 days prior inactive service.  Item 18 (Remarks) contains, in pertinent part, the entry “Immediate Reenlistments This Period: 800129 To 830102.”

14.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.


15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 (Character of Service/Description of Service), Section IV (Dishonorable and Bad Conduct Discharge) of this Army regulation, 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, after completion of appellate review and after such affirmed sentence has been 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.

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, 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.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his bad conduct discharge should be upgraded because he was young, dumb, and innocent, so he took a plea bargain in order to avoid jail time.  However, the applicant provides insufficient evidence in support of his claim.

2.  The evidence of record shows that the applicant entered into a pre-trial agreement concerning a sentence of confinement over 80 days and that the SPCMCA honored this agreement when he approved the applicant’s sentence subsequent to his conviction by special court-martial.

3.  The evidence of record shows that the applicant was 18 years of age at the time of his entry on active duty and nearly 24 years of age at the time he committed the offenses for which he was convicted.  The evidence of record refutes the applicant’s claim that he was innocent.  In addition, there is no evidence that indicates the applicant was any less mature or intelligent than other Soldiers of the same age, education, and training who successfully completed their military service during the period under review.

4.  The evidence of record confirms that the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged.  In the absence of evidence to the contrary, the Board presumes administrative regularity with respect to the applicant's court-martial and concludes that the applicant's record of service prior to his court-martial was duly considered.

5.  The evidence of record indicates the applicant’s conviction and discharge were effected in accordance with applicable law and regulations, his rights were protected throughout the court-martial process, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

6.  Title 10, United States Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

7.  The evidence of record shows that the applicant honorably completed the period of his initial enlistment (i.e., from 29 January 1980 through 2 January 1983) and this period of service is recorded in Item 18 (Remarks) of his
DD Form 214.  However, during the period of service under review (i.e., from
3 January 1983 through 26 March 1986), the applicant’s military service records 
show he was found guilty on 2 specifications of Article 112a.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to an honorable discharge or a general discharge under honorable conditions.

8.  After a thorough and comprehensive review of the applicant’s military service records, it is concluded that based on the seriousness of the offense for which he was convicted, clemency would not be appropriate in this case.  In addition, the U.S. Army does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for government employment and benefits.  Consequently, the applicant provides insufficient evidence to support his request.

9.  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.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LE____  ___JTM__  ___RTD_  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.




     ___Lester Echols____
          CHAIRPERSON
INDEX

CASE ID
AR20070002633
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/08/23
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19860326
DISCHARGE AUTHORITY
AR 635-200, Chapter 3, Section IV 
DISCHARGE REASON
As A Result of Court-Martial – Other
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.8501.0000
2.

3.

4.

5.

6.