RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE: 20 March 2008	  
	DOCKET NUMBER:  AR20070010991 


	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. Judy Blanchard 

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise Prendergast

Member

Mr. Donald L. Lewy

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, an upgrade of his Bad Conduct Discharge (BCD).  

2.  The applicant states, in effect, that he works at the Naval Post-Graduate School as a contract worker.  The applicant traces a long employment history since leaving the Army.  He worked as the Lead Audio Technician at the Defense Language Institute in Monterey, California.  In this position, he earned over 40 letters of commendation and appreciation from the school’s Commandant and other officials, as well as numerous Coins of Excellence.  The applicant states that he is a member of the Monterey Chamber of Commerce and has participated in various charity events and churches.  He requests an upgrade not only to improve legacy, but also to further his efforts to obtain a regular civilian position at the Naval Post-Graduate School.  Those who are witnesses of his conduct are willing to submit statements attesting to his good character.  

3.  The applicant provides a self-authored letter, Certificates of Appreciation, and character references in support of his application.

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.  On 28 July 1981, the applicant enlisted in the Regular Army.  He completed the required training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  The highest grade he attained was pay grade E-3. 

3.  On 10 May 1983, the applicant was convicted at a General Court-Marital convened by the Department of the Army, Headquarters 7th Infantry Division and Fort Ord, Fort Ord, California, for one specification of possessing 8.51 grams of Marijuana with the intent to distribute, the wrongful distribution of 8.51 grams of Marijuana, and the wrongful distribution of 2.80 grams of Marijuana.  He was sentenced to reduction to pay grade E-1, forfeiture of all pay and allowances, confinement at hard labor for a period of 6 months, and to be discharged from the United States Army with a BCD.  On 30 June 1983, the convening authority approved the findings and sentence and the record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.  On 19 November 1984, after completion of all required post-trial and appellate reviews the sentence was duly executed.  There is no evidence that the applicant petitioned the United States Court of Military Appeals for a grant of review.  

4.  On 13 December 1984, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 3, Section IV as a result of a court-martial with issuance of a BCD Certificate.  He had completed 2 years, 11 months, and
19 days of creditable active military service.  

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, 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 and that the appellate review must be completed and the affirmed sentence ordered duly executed.

6.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be insufficient in supporting the requested relief.  

2.  The applicant’s third-party letters and contentions regarding his good post- service conduct and achievements were carefully considered.  The applicant’s good post-service conduct is commendable, but is not so meritorious as to warrant an upgrade of his discharge. 

3.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations 
and his rights were protected throughout the court-martial process.  There is no evidence in the applicant’s record nor has he presented any evidence to warrant the requested relief.

4.  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.

5.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case.  

6.  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

___LDS__  __EP___  ___DLL__  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.




_____Linda D. Simmons___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.