IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080003317 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge.

2.  The applicant states that he served honorably for two years and wanted to continue his honorable service; however, he was unjustly discharged because of a drug possession charge.

3.  The applicant did not provide any additional documentary evidence 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.  The applicant's records show that he enlisted in the Regular Army for a period of 3 years on 20 October 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant's records further show that he was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts of valor during his military service.

4.  On 2 September 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of the Military Justice (UCMJ) for wrongfully possessing marijuana, on or about 29 August 1982, and for wrongfully possessing an authorized Armed Forces Liberty Pass, on or about 29 August 1982.  His punishment consisted of reduction to private (PVT)/E-1 (suspended for 6 months), forfeiture of $279.00 pay per month for two months, and 45 days of extra duty and restriction. 

5.  On 11 May 1983, the applicant pled guilty at a Special Court-Martial to one specification of wrongfully possessing some amount of marijuana, with intent to distribute, on or about 5 January 1983; one specification of wrongfully distributing some amount of marijuana, on or about 5 January 1983; and one specification of wrongfully possessing some amount of marijuana, on or about 5 March 1983.  

6.  The Court found the applicant guilty of the charge and specifications and sentenced him to reduction to PVT/E-1, confinement at hard labor for four months, forfeiture of $382.00 pay per month for four months, and a bad conduct discharge.  The sentence was adjudged on 11 May 1983.

7.  On 11 August 1983, the convening authority approved the applicant's sentence and ordered it executed, but the execution of that portion adjudging confinement at hard labor in excess of three months was suspended for six months.  He further ordered the record of trial be forwarded to The Judge Advocate General of the Army for review by the Army Court of Military Review.

8.  The applicant was transferred to the United States Army Correctional Activity (USACA), Fort Riley, Kansas for service of his sentence to confinement.

9.  On 14 December 1983, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.
10.  On 8 May 1984, the U.S. Court of Military Appeals granted a review of the decision of the U.S. Army Court of Military Review.  On 31 October 1984, the Court ordered the finding of guilty to one specification of wrongfully possessing some amount of marijuana, with intent to distribute, on or about 5 January 1983, be set aside and dismissed.  The Court then affirmed the rest of the decision by the Army Court of Military Review, including the Bad Conduct Discharge.

11.  U.S. Army Correctional Activity, Fort Riley, Kansas, Special Court-Martial Order Number 454, dated 14 November 1984, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

12.  The applicant was discharged from the Army on 23 November 1984.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial, with a bad conduct discharge.  This form further shows the applicant completed 2 years, 11 months, and 3 days of creditable military service.  He also had 60 days of lost time, before the expiration of his term of service.

13.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.  

14.  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 (emphasis added), 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.

15.  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.



16.  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 Army Board for Correction of 
Military Records 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  There is no evidence in the available record and the applicant did not provide substantiating evidence that shows he was unjustly discharged.

3.  The evidence of record shows that the applicant had a history of misconduct, including one instance of an Article 15 and a special court-martial.  His trial by the special 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.

4.  After a review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge.

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003317



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ABCMR Record of Proceedings (cont)                                         AR20080003317



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