IN THE CASE OF:
BOARD DATE: 10 March 2009
DOCKET NUMBER: AR20080017089
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 be upgraded.
2. The applicant states that he had good service up to the time of his court martial. He also states that he is laid-off and that getting his discharge upgraded will help him get a good job.
3. The applicant provides no documentary evidence to substantiate his case.
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. On 15 July 1978, the applicant enlisted in the Regular Army for 3 years. He completed his initial training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).
3. He progressed normally through a series of assignments and a reenlistment, and was promoted to sergeant, pay grade E-5, on 2 June 1983.
4. On 4 December 1987, a general court-martial convicted the applicant of distribution of marijuana on two separate dates contrary to his pleas. The sentence consisting of reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for 18 months, and a bad conduct discharge was approved as adjudged, and except for the BCD, was ordered executed.
5. On 25 May 1988, the U.S. Army Court of Military Review held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact. Accordingly, it affirmed the finding of guilty and the sentence as approved.
6. The U.S. Court of Military Appeals denied the applicant's petition for grant of review on 14 September 1988. On 18 December 1988, the convening authority ordered the bad conduct discharge executed.
7. The applicant was discharged with a bad conduct discharge on 20 January
1989. He had completed 9 years, 4 months, and 9 days of creditable service and he had 1 year, 1 month, and 16 days of lost time due to being in confinement.
8. Army Regulation 635-200 (Personnel Separations - Enlisted), 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 members 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. 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 Soldiers separation specifically allows such characterization.
10. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. 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. The applicant contends that he had good service up to the time of his court-martial.
2. 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 characterized the misconduct for which the applicant was convicted.
3. There is no available evidence showing the applicants discharge was inequitable or that any of his rights were denied.
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 the aforementioned requirement.
5. In view of the above, the applicant's request should be denied.
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.
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