IN THE CASE OF:	

		BOARD DATE:	15 September 2009  

		DOCKET NUMBER:  AR20090004642 


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, an upgrade of his bad conduct discharge (BCD).

2.  The applicant states, in effect, at the time of his discharge, he did not fully understand the appeal process and as result did not pursue an appeal.  He claims he was sentenced to 45 days of confinement and a BCD for possession of illegal drugs in Germany.

3.  The applicant provides no documentary evidence 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 record shows he enlisted in the Regular Army and entered active duty on 17 June 1980.  He was trained in and awarded military occupational specialty 94F (Hospital Food Service Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to private first class on 1 April 1981 and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private, pay grade E-2 (PV2), on 15 April 1983 and to private, pay grade E-1 (PV1), on 11 May 1983.  His record shows that during his active duty tenure, he earned the Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 2 March 1983 for two specifications of failing to go to his appointed place of duty at the time prescribed.  His punishment for these offenses was a reduction to PV2 (suspended) and 7 days of extra duty.

5.  On 11 May 1983, a special court-martial (SPCM) found the applicant guilty of violating Article 134 of the UCMJ by wrongfully possessing and distributing marijuana in the hashish form in accordance with his plea.  The resulting sentence approved by the convening authority in Headquarters, 3rd Infantry Division, SPCM Order Number 97, dated 16 May 1983, was a reduction to PV1, forfeiture of $250.00 per month for 2 months, confinement at hard labor for 45 days, and a BCD.

6.  On 31 October 1983, the U.S. Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact and, having determined on the basis of the entire record that they should be approved, affirmed the findings of guilty and the sentence in the applicant's case.

7.  Headquarters, 7th Infantry Division and Fort Ord, Fort Ord, California, SPCM Order Number 18, dated 26 January 1984, directed that, Article 71(c ) having been complied with, the applicant's sentence be duly executed.  On 21 February 1984, the applicant was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 21 February 1984 shows that he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial after completing 3 years, 7 months, and 1 day of creditable active military service and accruing 34 days of time lost due to confinement.  It further shows that he held the rank of PV1 at the time and that he received a BCD.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge (DD) or BCD.  It stipulates, in pertinent part, that a Soldier will be given a DD or BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

11. 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's contention that his BCD should be upgraded because he did not fully understand the appellate process was carefully considered.  However, by law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  His record reveals no acts of valor or significant achievement and is not sufficiently meritorious to support upgrade of his BCD.  Further, the record confirms an appellate review of the applicant's court-martial conviction and sentence was completed by the U.S. Army Court of Military Review which found the approved findings of guilty and the sentence correct in law and fact.  Therefore, there is an insufficient evidentiary basis to support clemency in this case.

3.  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.



      ____________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)                                         AR20090004642



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ABCMR Record of Proceedings (cont)                                         AR20090004642



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