RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2008
	DOCKET NUMBER:  AR20070015081 


	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.


x
	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.

2.  The applicant states, in effect, that a bad conduct discharge for the sale of “one user unit” was too hard of a discharge.

3.  The applicant submitted no additional documentation in support of his request for an upgrade of his discharge.

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 US Army Reserve on 23 February 1979.  On 26 February 1979, he enlisted in the Regular Army.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11H, Heavy Anti-Armor Weapons Crewman. 

3.  The applicant was assigned to Korea and served there for the period 17 June 1979 through 16 June 1980.  On his return he was assigned to the US Army Garrison, Fort McCoy, Wisconsin.

4.  On 27 June 1981, he was assigned to Germany.  On his arrival there he was assigned to Company C, 1st Battalion, 51st Infantry, 1st Armored Division.

5.  On 1 February 1982, the applicant was promoted to the rank and pay grade, Specialist Four, E-4.  This would be the highest rank and pay grade he would attain while he served on active duty.

6.  On 13 August 1982, the applicant was tried and found guilty by a special court-martial, of wrongfully possessing approximately 0.237 grams, more or less, of Phentermine; of wrongfully selling approximately 0.237 grams, more or less, of Phentermine; and of wrongfully having in his possession a switchblade knife.  He was sentenced to be confined at hard labor for six months, to forfeit $367.00 per month for six months, and to be discharged from the service with a bad conduct discharge.  Only so much of the sentence that provided for a bad conduct discharge, his confinement at hard labor for three months, and a forfeiture of $367.00 per month for three months, was approved.

7.  On 8 October 1982, the applicant was placed on excess leave pending appellate review of the approved sentence which included the bad conduct discharge.

8.  On 31 January 1983, the US Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact and having determined on the basis of the entire record that they should be approved, affirmed the sentence.

9.  On 31 July 1983, the US Army Correctional Activity, Fort Riley, Kansas, prepared and distributed Special Court-Martial Order Number 362.  Article 71(c) having been complied with, the sentence was ordered duly executed.  That portion of the sentence pertaining to confinement had been served.

10.  On 5 August 1983, the applicant was discharged from the Army in the rank and pay grade, Private, E-1, pursuant to the sentence of a special court-martial and the provisions of AR 635-200, Section IV.  He was issued a bad conduct discharge.  By the date of his discharge, he had served 4 years, 3 months, and 16 days active Federal service, with the period 13 August through 5 October 1982 identified in Item 29 (Dates of Time Lost During this Period), of his DD Form 214, Certificate of Release or Discharge from Active Duty, as lost time.

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

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review was required to have been completed and the affirmed sentence ordered duly executed.

13.  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.

14.  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 separation specifically allows such characterization.

15.  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 conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.  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.

2.  The evidence of record shows the applicant received a special court-martial for the wrongful possession and sale of approximately 0.237 grams, more or less, of Phentermine, and for the wrongful possession of a switchblade knife.  Trial by court-martial was warranted by the gravity of the offenses charged.  He was convicted of violations of the Uniform Code of Military Justice and as part of his sentence, he was sentenced to a bad conduct discharge.

3. The evidence shows his conviction and discharge were effected in accordance with applicable law and regulation.

4.  The applicant’s sentence was reviewed by the US Army Court of Military Review and was found to be correct in law and fact and this having been determined on the basis of the entire record, the US Army Court of Military Review affirmed the sentence.  The applicant’s sentence of his discharge with a bad conduct discharge was ordered executed and he was so discharged on 5 August 1983.

5.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

6.  The applicant provided no evidence to show that his discharge was unjust and he has also not provided evidence sufficient to mitigate the character of his discharge.

7.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x_  __x___  __x__  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.




_____x__
          CHAIRPERSON


INDEX

CASE ID
AR20070015081
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19830805
DISCHARGE AUTHORITY
AR 635-200, Section IV
DISCHARGE REASON
As a result of Special Court-Martial conviction.
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.
144.3900
3.

4.

5.

6.