IN THE CASE OF:	  

		BOARD DATE:	        08 JANUARY 2009

		DOCKET NUMBER:  AR20080015013 


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 be upgraded to an honorable or general discharge. 

2.  The applicant essentially states that he was told that his bad conduct discharge would be upgraded to an honorable or general discharge after 5 years. He also states, in effect, that he has no evidence to support this, just the information that he was told at the time.  He further states that he was young at the time and in love with a German woman, and that he is now married with two sons that are 11 and 16 years old.  Additionally, he states that he is a happy man with a beautiful wife and family.  He continued by essentially stating that his bad experience in the military came to his mind this past year, and that the Army Board for Correction of Military Records (ABCMR) can change his life by upgrading his discharge.  He also states that he served in the Army with pride and that he does not have any problems with the law in Puerto Rico.  Further, he states that he has suffered too much and is going to a Department of Veterans Affairs hospital for depression; he also told his doctor from the mental clinic about what happened to him in the past.  He also states, in effect, that he deserves an opportunity.

3.  The applicant provides no additional evidence in support of this 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 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 military records show that after having prior service in the Regular Army from 21 July 1976 to 18 July 1979, he reenlisted in the Regular Army on 3 January 1980.  He completed advanced individual training and was awarded military occupational specialty 76J (Medical Supply Specialist).  After serving a tour in Germany from February 1980 to February 1984, he was reassigned to Fort Hood, Texas, and reenlisted for 3 years on 21 November 1983.

3.  On 7 March 1985, the applicant was convicted by a general court-martial for wrongfully distributing 108 grams, more or less, of marijuana on or about 15 September 1984.  He was sentenced to 1 year of confinement, forfeiture of all pay and allowances, reduction in rank and pay grade from specialist five/E-5 to private/E-1, and to be discharged from the service with a bad conduct discharge. He was transferred from Fort Hood, Texas, to Fort Riley, Kansas, on 7 March 1985 and was placed in confinement.  On 25 April 1985, the applicant's sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, was ordered to be executed.

4.  On 16 December 1985, the unexecuted portion of the applicant's sentence to confinement for 1 year was remitted and he was released from confinement on that date.  He was also placed on excess leave on this date pending appellate review of his case.

5.  On 20 December 1985, the U.S. Army Court of Military Review affirmed the findings of guilty against the applicant and his sentence.

6.  On 1 August 1986, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial order.  Item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he received a bad conduct discharge.  Item 28 (Narrative Reason for Separation) of this same document has an entry of "As a result of court-martial."

7.  Title 10, U.S. Code, section 1552, as amended does not permit any redress by this Board that 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.

8.  Paragraph 3-7a of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.

9.  Paragraph 3-7b of the same regulation also 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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to an honorable or general discharge. 

2.  The applicant's contention that he was told that his bad conduct discharge would be upgraded to an honorable or general discharge after 5 years was considered, but not found to have any merit.  There has never been a provision of regulation which provided that a discharge would be upgraded after a certain amount of time and the ABCMR does not upgrade discharges based solely on the passage of time.


3.  The applicant's contentions about his happy family life and that he does not have any problems with the law in Puerto Rico were noted.  However, good post-service conduct alone is not a basis for upgrading a discharge.

4.  The applicant's contention that he was young at the time was also considered. However, records show that the applicant was over 26 years old at the time he wrongfully distributed marijuana, and there is no evidence which shows that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  The applicant’s entire record of service was considered; however, the fact that the applicant was tried and convicted by a general court-martial for an offense of the Uniform Code of Military Justice shows that the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The evidence of record shows that the applicant was discharged pursuant to a duly reviewed and affirmed general court-martial order, and there is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

6.  After a thorough review of the available records, there was no cause for clemency and an insufficient basis upon which to base an upgrade of the applicant’s bad conduct discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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.



      __________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)                                         AR20080009600



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ABCMR Record of Proceedings (cont)                                         AR20080015013



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