IN THE CASE OF:	   

		BOARD DATE:	  	   28 October 2008

		DOCKET NUMBER:  AR20080012845 


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 that his bad conduct discharge (BCD) be upgraded to honorable.  

2.  The applicant states that his discharge was inequitable because it was based on one isolated incident after he served honorably for approximately 14 months of service with no other adverse actions.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the Regular Army on 28 January 1981 for a period of four years.  At the completion of one station unit training (OSUT) at Fort Benning, Georgia, he was awarded military occupational specialty 11B (infantryman).  His highest grade attained was private first class.

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was apprehended by civil authorities on 31 March 1982 for armed robbery and placed in confinement pending trial.  

4.  On 7 May 1982, the applicant was convicted by a special court-martial of the following offenses: (1) attempted to have in his possession two methaqualone pills; (2) attempted to sell methaqualone pills; (3) attempted to transfer methaqualone pills; (4) wrongfully possess marijuana; (5) wrongfully sell marijuana; and (6) wrongfully transfer marijuana.  He was sentenced to a reduction to private, E-1, confinement at hard labor for 4 months, and a BCD.

5.  His service personnel records contain a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 27 August 1982, shows he was tried by civil authorities and was sentenced to 10 years confinement.  

6.  On 28 February 1983, the United States Army Court of Military Review affirmed the findings of guilt and the sentence.  

7.  On 28 June 1983, the court-martial convening authority ordered the BCD to be executed.  

8.  The applicant was discharged on 26 September 1983 under the provisions of Army Regulation 635-200, chapter 3, section IV as a result of court-martial.  He had completed 1 year, 1 month, and 29 days of creditable active service with 545 days of lost time.

9.  On 12 November 1985, the Army Discharge Review Board denied the applicant’s request for a recharacterization of his BCD to a general under honorable conditions discharge.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states 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 ordered duly executed.


11.  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.

12.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  It is noted that the 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.

2.  The applicant’s record of service included one special court-martial for possession and attempting to sell drugs.  He was also apprehended by civil authorities on 31 March 1982 for armed robbery and placed in confinement and later convicted.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or general under honorable conditions discharge.


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)                                         AR20080012845



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ABCMR Record of Proceedings (cont)                                         AR20080012845



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