IN THE CASE OF:
BOARD DATE: 4 November 2008
DOCKET NUMBER: AR20080009946
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, an upgrade of his bad conduct discharge (BCD).
2. The applicant states, in effect, that the BCD should be expunged because of time.
3. The applicant does not provide documents 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 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's available record shows he enlisted in the Regular Army and entered active duty on 25 May 1979, and was trained in and awarded military occupational specialty (MOS) 63H (Track Vehicle Repairer).
3. The applicant's record shows the highest rank he held while serving on active duty was specialist four (SP4)/pay grade E-4. His record documents no acts of valor, significant achievement, or service warranting special recognition.
4. The applicant's DA Form 2-2 (Record of Court-Martial Conviction) shows that on 6 August 1982, a Special Court-Martial found the applicant guilty of wrongfully possessing of some amount of Marijuana and wrongfully selling 12 grams (more or less) of Marijuana. The applicant was sentenced to confinement at hard labor for 4 months, forfeiture of $300.00 per month for four months, reduction to pay grade E-1, and a BCD. On 18 August 1982, the sentence was approved, affirmed, and executed. The original orders are not contained in the applicant's file. The applicant was place on excess leave from 15 November 1982 through 21 June 1983, pending disposition of mandatory appellate review.
5. On 22 June 1983, the applicant was discharged with a BCD after completing a total of 3 years, 9 months, and 19 days of creditable active military service.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge. It stipulates, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.
7. Title 10 of the United States Code, section 1552, as amended, does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his record should be expunged because of time was carefully considered and found to be without merit. There is no evidence and the applicant has not presented any evidence to support granting the requested relief.
2. The evidence of record reveals no error or injustice related to the applicants court-martial and/or his subsequent discharge. By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ, is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.
3. His record documents no acts of valor, significant achievement, or service warranting special recognition, and there is an insufficient evidentiary basis to support clemency in this case.
4. 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.
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) AR20080009946
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ABCMR Record of Proceedings (cont) AR20080009946
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