IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080006948 


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 bad conduct discharge (BCD) be upgraded to a general discharge. 

2.  The applicant states, in effect, that he was informed by counsel that after 2 years his discharge would be upgraded to a general discharge.  He now states that he needs this done because it never happened.  He states that his case was heard overseas in Western Germany and he was provided improper counsel.  

3.  The applicant provides no additional documentation 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 record shows he enlisted in the Regular Army on 18 November 1980.  He was trained as an Infantry Indirect Fire Crewman, in military occupational specialty (MOS), 11C.  He was promoted to pay grade E-2 effective 18 May 1981. 

3.  At a special court-martial on 9 November 1981, while serving overseas in Germany, the applicant was found guilty pursuant to his pleas of wrongfully selling marijuana and for wrongfully possessing marijuana, in the hashish form.  He was sentenced to reduction to pay grade E-1, to a forfeiture of $367.00 pay per month for 6 months, to be confined at hard labor for 6 months, and to be discharged with a BCD.  Only so much of the sentence as provided for reduction to pay grade E-1, a forfeiture of $367.00 pay per month for 3 months, confinement at hard labor for 3 months, and a BCD was approved.  

4.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.  Pending completion of the review, the applicant was confined at the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

5.  On 20 October 1982, the United States Army Court of Military Review affirmed the findings and sentence.

6.  The unexecuted portion of his sentence was remitted and the deferment rescinded effective 31 March 1982.  The provisions of Article 71(c) having been complied with, the sentence was ordered executed on 11 March 1983.

7.  On 21 March 1983, the applicant was discharged from the Army pursuant to the sentence of a special court-martial and he was issued a BCD.  He had served 2 years, 2 months, and 15 days of creditable service and he had 49 days of lost time due to being in confinement. 

8.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

10.  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.

11.  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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulation.

2.  The evidence shows the applicant was tried by a special court-martial and was found guilty pursuant to his pleas of wrongfully selling marijuana and for wrongfully possessing marijuana, in the hashish form.  He was discharged pursuant to the sentence of a special court-martial and he was issued a bad conduct discharge after the sentence was affirmed.

3.  The applicant has not provided evidence to show that his discharge was unjust or evidence sufficient to mitigate the character of his discharge.

4.  The applicant contends that he was informed by counsel that after 2 years his discharge would be upgraded to a general discharge; however, he has provided no evidence, and there is none, to support his contention.  Furthermore, the Army has never had a program for automatic upgrades of punitive discharges.

5.  The applicant's case was heard overseas in Germany; however, he has provided no evidence, and there is none, to show that he was provided improper counsel during his special court-martial proceedings.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


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
      
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)                                         AR20080006948



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ABCMR Record of Proceedings (cont)                                         AR20080006948



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