IN THE CASE OF:	

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090002767 


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 to an honorable discharge.

2.  The applicant states he made the biggest mistake of his life in 1982.  He states he was unable to attend the funeral of his favorite uncle due to his being assigned in Germany.  He states he was approached by a sergeant who offered him some hashish to sell.  He states he was young and didn't realize the seriousness of the offense so he took it and sold some to an undercover U. S. Army Criminal Investigation Command agent.  He states he was told he would receive an honorable discharge and the incident would be removed from his record.  He states that when he applied for benefits from the Department of Veterans Affairs he found his record had not been cleared.  He states he has trained and worked in the construction field for over 25 years and is currently unemployed due to the economy.  He states he tries to keep active and stay positive during these trying times by checking on the elderly in his neighborhood and helping to feed families at his church.  He states that he had been an upstanding serviceman who had not been in any trouble prior to the drug incident.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 24 January 1983 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 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 personnel records show he enlisted at the age of 18 in the Regular Army on 8 August 1978 for a period of 4 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 13B (Cannon Crewman).

3.  The applicant was 20 years of age when he was assigned to Battery A, 1st Battalion, 76th Field Artillery, in Germany on 16 May 1980.

4.  On 29 October 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for sleeping while posted as a sentinel.

5.  On 23 October 1981, the applicant accepted NJP under Article 15, UCMJ, for unlawfully striking a private.

6.  On 29 March 1982, at a special court-martial (SPCM) the applicant pled not guilty and was found not guilty of possession of 1.89 grams of marijuana in the hashish form and wrongful transfer of 1.89 grams of marijuana in the hashish form.  He pled guilty and was found guilty of wrongfully selling 1.89 grams of marijuana in the hashish form.  His sentence consisted of reduction to private/pay grade E-1, 30 days of confinement, and to be discharged from the service with a bad conduct discharge.

7.  On 18 June 1982, the convening authority approved the sentence.

8.  On 31 August 1982, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

9.  On 23 October 1981, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) during the period 22-23 November 1982.

10.  Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, SPCM Order Number 3, dated 12 January 1983, ordered the sentence of the bad conduct discharge executed.

11.  On 13 January 1983, the applicant accepted NJP under Article 15, UCMJ, for failure to obey a lawful order from a commissioned officer, to wit:  commander's policy letter by bringing alcoholic beverages into the 2nd Platoon barracks.

12.  On 24 January 1983, the applicant was discharged as a result of a court-martial.  The applicant's net active service was 4 years, 4 months, and 5 days.  He had 42 days of time lost.

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

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

15.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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.

17.  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 he was young and didn't realize the seriousness of his offense.  He was 18 years of age at time of enlistment.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  He was 20 years of age at the time of his assignment to Germany and he was 21 years of age at time of his drug offenses.  Therefore, the age of the applicant is not considered a mitigating factor in the determination of this case.

2.  The applicant contends he was an upstanding serviceman prior to his drug offense.  However, the evidence shows he accepted NJP under Article 15, UCMJ, on two occasions prior to his court-martial.  Therefore, his contention is without merit.  It is also noted the applicant accepted NJP on two occasions subsequent to his SPCM.

3.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not sufficiently mitigating to upgrade a properly-issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

4.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

5.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

6.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.

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)                                         AR20090002767



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ABCMR Record of Proceedings (cont)                                         AR20090002767



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