RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:		DOCKET NUMBER:  AR20080000720 


	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.  


	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 (BCD) be upgraded to a general or an honorable discharge.

2.  The applicant states, in effect, that he did not receive any type of drug treatment and had only one urinalysis. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request. 

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 military record shows he enlisted in the Regular Army on 3 January 1984, for a period of 3 years.  The applicant successfully completed basic combat training and advanced individual training at Fort McClellan, Alabama.  On completion of his one station unit training, he was awarded the military occupational specialty, 95B, Military Police.  

3.  On 12 July 1984, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for sleeping on duty at Siegelsbach Army Depot.  The imposed punishment was a reduction to E-1/Private, [already in the grade], a forfeiture of $139.00 a month for 1 month, 14 days restriction and extra duty for 14 days.  The applicant did not appeal the punishment.

4.  The applicant was promoted to Private First Class/pay grade E-3 effective 1 March 1985.


5.   On 16 April 1985 the applicant received NJP under the provisions of Article 15 of the UCMJ for having a positive urinalysis (on or about 7 January 1985) indicating that he had wrongfully ingested marijuana (hashish) sometime during the 10 day period immediately prior to giving a urine specimen.  The imposed punishment was a reduction in grade to E-2, a forfeiture of $162.00 for 1 month, and extra duty for 14 days.  The applicant did not appeal the punishment.

6.  On 1 May 1985 the applicant received NJP under the provisions of Article 
15 of the UCMJ for having a positive urinalysis (on or about 5 February 1985),  indicating that he had wrongfully ingested marijuana (hashish) sometime during the 10 day period immediately prior to giving a urine specimen.  The imposed punishment was a reduction in grade to E-1, a forfeiture of $144.00 a month for 
1 month, and extra duty for 14 days.  The applicant did not appeal the punishment.

7.  On 23 July 1985, the applicant was convicted by a General Court-Martial that was convened by Headquarters, VII Corps, for wrongfully possessing and distributing hashish on 3 separate occasions in March 1985.  He pled guilty to all charges.  The military members adjudged the following sentence on 23 July 1985: dishonorable discharge, a forfeiture of all pay and allowances, and confinement for 7 years; however, the General Court-Martial Convening Authority approved only so much of the sentence as provided for confinement for 1 year, a forfeiture of all pay and allowances, and a bad conduct discharge.  The sentence was ordered executed, with exception of the part of the sentence extending to bad conduct discharge on 4 September 1985.  

8.  On 17 March 1986, the US Army Court of Military Review reviewed the findings of guilty and the sentence which had been imposed.  The court affirmed the findings and sentence as approved by the convening authority.  

9.  Orders Number 79-5, dated 24 April 1986 were published to reassign the applicant to the 6th Company, 3rd Battalion, US Army Correctional Facility, Fort Riley, Kansas, with a reporting date of 2 May 1986. 

10.  General Court-Martial Order Number 529 dated 22 July 1986 confirmed that the applicant’s portion of the sentence pertaining to confinement had been served and that portion of his sentence pertaining to the bad conduct discharge would be executed.

11.  After his release from confinement, the applicant was discharged in accordance with Orders 145-7, with an effective date of 1 August 1986.  

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 pled guilty on specified charges and received a general court-martial for the wrongful possession and distribution of hashish on three separate occasions in March 1985.  Trial by court-martial was warranted by the gravity of the offenses charged.  He was convicted of violations of the UCMJ and was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, and confinement for one year. 

3.  The applicant’s sentence was reviewed by the US Army Court of Military Review.  The US Army Court of Military Review affirmed the sentence.  The applicant’s sentence of his discharge to a bad conduct discharge was ordered executed and he was so discharged on 1 August 1986.

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

5.  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.

6.  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
ABCMR Record of Proceedings (cont)                                         AR20080000720



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508