RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 13 May 2008
DOCKET NUMBER: AR20080001443
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.
Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
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 honorable.
2. The applicant states that he is really sorry for what he did. He had three years (of service) without any trouble.
3. The applicant provides no additional evidence.
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 applicants 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 applicants 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 Regular Army on 21 June 1978. He completed basic training and advanced individual training and was awarded military occupational specialty 05B (Radio Operator). He was promoted to Specialist Four, E-4 on 1 November 1979. He was assigned to Battery B, 1st Battalion, 81st Field Artillery, Germany, in a personnel reliability program (PRP) position (i.e., the unit was authorized tactical nuclear weapons and he functioned in a nuclear duty position) on 8 May 1980.
3. On 24 March 1982, the applicant was convicted, in accordance with his pleas, by a special court-martial of wrongfully having in his possession some amount of marijuana; of wrongfully selling nine individually-wrapped pieces of marijuana in the hashish form; and of wrongfully transferring nine individually-wrapped pieces of marijuana in the hashish form. He was sentenced to be discharged with a bad conduct discharge, to be confined at hard labor for 2 months, to be reduced to Private/E-1, and to forfeit $100.00 pay per month for 2 months.
4. On 10 November 1982, the U. S. Army Court of Military Review affirmed the findings of guilty and the applicants sentence.
5. On 18 March 1983, the applicant was discharged, pursuant to his conviction by court-martial, with a bad conduct discharge after completing 4 years, 1 month, and 9 days of creditable active service with 50 days of lost time (confinement).
6. 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 ABCMR 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.
7. Army Regulation 635-200 governs the separation of enlisted personnel. 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 members 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.
8. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicants prior good service was carefully considered. However, for that very reason he should have known what the Armys standards of conduct were, to include the Armys stance on illegal drug use/misuse, especially within a PRP unit.
2. 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__xxx___ __xxx___ __xxx___ 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.
__ XXX__
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20080001443
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA 22202-4508
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