IN THE CASE OF:	  

		BOARD DATE:	       23 JULY 2009

		DOCKET NUMBER:  AR20090004566 


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 (BCD) be upgraded.

2.  The applicant states, in effect, he wants his discharge upgraded so that he may have a normal life.  He contends he was a good Soldier until he developed medical problems following a car accident.  He was prescribed codeine for a year and this caused serious problems.  He made a mistake and he needs a second chance. 

3.  The applicant provides no supporting documentation.

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 service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

3.  The applicant enlisted in the Regular Army (RA), on 12 September 1973.  He served 3 years and was honorably released from active duty on 11 September 1976.

4.  During this period he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice, on two occasions.

5.  The applicant served in the Army Reserve for approximately a year; enlisted in the RA, on 31 August 1977; and reenlisted on 25 April 1979.

6.  The applicant received NJP, on 11 June 1980, for failure to go to his appointed place of duty.

7.  On 9 February 1982, the applicant was arrested by civilian authorities and returned to military control the next day.  The specifics of this arrest are not of record.

8.  On 12 February 1982, a special court-martial found the applicant guilty of the illegal sale of marijuana, on 19 and 20 November 1981.  The approved sentenced was a reduction to pay grade E-1, a forfeiture of $250.00 pay per month for 2 months, 45 days in confinement, and a BCD.  The record of trial is not available.  

9.  The sentence was approved on 18 March 1982, according to Headquarters, U.S. Army Armor Center and Fort Knox, Special Court-Martial Order Number 73.

10.  On 19 March 1982, the applicant was placed on excess leave pending final appellate review of his court-martial conviction.

11.  The record contains no documentation of the outcome of the appellate review or of the final discharge order.  

12.  The applicant was discharged with a BCD on 27 September 1982.  The    DD Form 214 he was issued shows he had completed 3 years, 3 months, and
25 days of creditable service during the period under review.  He also had         37 days of lost time and 188 days of excess leave.


13.  The above DD Form 214 shows the applicant was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar, the Good Conduct Medal (2nd award), the Army Service Ribbon, the Overseas Service Ribbon, and the National Defense Service Medal.

14.  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 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.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 sets forth the basic authority for the separation of enlisted personnel.  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.  The applicant contends that he desires an upgrade of his bad conduct discharge so that he may have a more normal life.  He contends he was a good Soldier until he developed medical problems following a car accident and he was prescribed codeine for a year.  

2.  The applicant had a successful military career as documented by his prior honorable discharge and award of two Good Conduct Medals.  He can be justifiably proud of this service.  However, his last period of service ended as a result of serious drug-related charges.

3.  The applicant has provided no evidence to show that he suffered from the residuals of an automobile accident and that this in some way mitigated his conduct, impaired him physically, mentally, or emotionally, or affected his ability to know right from wrong and to adhere to the right.

4.  In the absence of evidence to the contrary, it is presumed the court-martial conviction was conducted in accordance with applicable law and regulation at the time.  The applicant’s discharge is appropriate considering the facts of the case.  The illegal sale of drugs is a serious offense.  The applicant has established no basis for clemency.

5.  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.




      _______ _   _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)                                         AR20090004566



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ABCMR Record of Proceedings (cont)                                         AR20090004566



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