IN THE CASE OF:
BOARD DATE: 17 July 2008
DOCKET NUMBER: AR20080006698
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, in effect, that his conviction by summary court-martial be expunged or overturned.
2. The applicant states that he was convicted by a summary court-martial in 1973 for possession of 15 grams (1/2 ounce) of marijuana. He served his punishment and continued his military career until he was honorably discharged at the end of his tour. He then went to work for the U. S. Postal Service for 33 years until his retirement. After he retired, he applied for an Ohio Gun Certificate to work in the Security Industry. He was denied the certificate due to the conviction for drug possession. He would like to have the conviction expunged or he would like to be granted clemency so he can get his Ohio Gun Certificate and start a new career in the Security Industry in Ohio.
3. The applicant provides his DD Form 214 (Report of Separation from Active Duty); the summary court-martial order; a Shelby Police Department Police Record Check; and a Richland County, OH, Public Records Request Form RC 100.
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 4 February 1972. He completed basic training and advanced individual training and was awarded military occupational specialty 11E (Armor Crewman).
3. On 14 July 1972, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being disrespectful in language toward his superior noncommissioned officer.
4. On 24 July 1973, the applicant accepted NJP under Article 15, UCMJ, for wrongfully appropriating a 1/4 ton truck, property of the U. S. Government.
5. On 8 September 1973, the applicant was convicted, pursuant to his plea, by a summary court-martial of wrongfully having in his possession 15 grams, more or less, of marijuana in hashish form. He was sentenced to be reduced to the grade of Private, E-1; to forfeit $190.00 pay per month for 1 month (suspended for 90 days); to perform hard labor without confinement for 30 days; and to be restricted for 60 days (suspended for 90 days).
6. On 26 November 1974, the applicant accepted NJP under Article 15, UCMJ, for absenting himself from his place of duty.
7. On 3 February 1975, the applicant was honorably released from active duty upon the expiration of his term of service.
8. 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.
DISCUSSION AND CONCLUSIONS:
1. There appears to have been no error or injustice in regard to the applicants summary court-martial process that would warrant expunging the record of his conviction. Records are not corrected solely to allow an individual to obtain employment or other benefits. In addition, the ABCMR is not empowered to set aside or overturn a court-martial conviction.
2. The applicant may want to consider applying for a pardon. Pardon issues are handled by the Office of the Pardon Attorney, Department of Justice. That office may not have jurisdiction over his case due to the fact that he was convicted by a summary court-martial. However, he may contact the Pardon Attorney at the following address: Office of the Pardon Attorney, 4th Floor, 500 First Street, NW, Department of Justice, Washington, DC 20530-0001, for more information.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__xx____ ___xx___ ___xx___ 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.
__________xxxx___________
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) AR20080006698
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20080006698
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2008 | 20080006639
The applicant requests, in effect, that his record of conviction by a general court-martial be expunged from his records. After an appeal, due to the circumstances surrounding the accident he was released, was honorably discharged, and was given back pay. Because there is no evidence to show that the applicants conviction by general court-martial was overturned, his court-martial records are still properly filed in his records.
ARMY | BCMR | CY2011 | 20110021800
IN THE CASE OF: BOARD DATE: 12 July 2012 DOCKET NUMBER: AR20110021800 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant's DD Form 214 shows he was discharged from the Regular Army on 28 January 1986 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, due to court-martial. The applicant contends that his bad conduct discharge should be upgraded to honorable and the reason for discharge should be changed to ETS because none of the offenses were...
ARMY | BCMR | CY2008 | 20080011693
The applicant requests, in effect, that his bad conduct discharge be upgraded. 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. In general, a pardon is granted on the basis of the petitioner's demonstrated good conduct for a substantial period of time after conviction and service of sentence.
ARMY | BCMR | CY2007 | 20070009141
The applicant requests that his bad conduct discharge (BCD) be upgraded to a general or an honorable discharge. Accordingly, on 24 February 1992, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3 as a result of a duly reviewed and affirmed general court-martial conviction. Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Army Board for Correction of Military Records is not...
ARMY | BCMR | CY2006 | 20060000936C070205
The available records indicate that the applicant was approved for a waiver of lost time on 31 March 1948, to enlist in the Army. Army Regulation 615-364, then in effect, set forth the conditions under which enlisted personnel could be discharged with a dishonorable or bad conduct discharge. Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Army Board for Correction of Military Records is not empowered to set aside...
ARMY | BCMR | CY2010 | 20100013492
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. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. Therefore, the applicant's record of service is insufficiently meritorious to warrant a...
ARMY | BCMR | CY2002 | 2002067317C070402
He states that the Army Board for Correction of Military Records (ABCMR) can set aside the applicant's conviction because he was convicted under the Articles of War. The sentence was adjudged on 31 March 1945. DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
ARMY | BCMR | CY2013 | 20130012297
The applicant requests that his discharge be upgraded to an honorable discharge. This form also shows that he received an under other than honorable conditions characterization of service. The evidence shows that he had a record of indiscipline and his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.
CG | BCMR | Alcohol and Drug Cases | 2003-144
The order indicates that on February 23, 1968, a state court placed the applicant on probation for three years after he was convicted of possessing marijuana. In 1977, the applicant applied to a Special Discharge Review Board for an VIEWS OF THE COAST GUARD On February 25, 2004, the Judge Advocate General of the Coast Guard submitted an advisory opinion recommending that the Board waive the statute of limitations and grant partial relief in this case by upgrading the applicant’s discharge...
ARMY | BCMR | CY2010 | 20100009092
A Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform. Both the Joint Board and Presidential Board were authorized to award a Clemency Discharge with the performance of alternate service. He was discharged pursuant to the sentence of a general court-martial and was issued a bad conduct discharge after the sentence was affirmed.