BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090006947 


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 discharge and that all reference to the term "distribution of marijuana" be removed from his Army and Federal Bureau of Investigation (FBI) records.

2.  The applicant states he never bought or sold any controlled substance.  He was not apprehended with a controlled substance and never tested positive for drug use.  All he did was pass a marijuana cigarette back to the person who had passed it to him.  Any reference to an arrest or court disposition of charges should be accompanied by the finding in the case.

3.  The applicant provides a copy of an FBI Record of Arrest and Prosecution (RAP) sheet. 

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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 13 June 1978 for a period of 6 years.  On 11 June 1979, he was discharged from the USAR DEP and he enlisted in the Regular Army (RA) on 12 June 1979.  He reenlisted in the RA on 7 June 1982.  The highest rank/grade he attained during his tenure of service was sergeant (SGT)/E-5.

3.  He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 29 October 1982, for driving a motorcycle while drunk, disobeying a direct order from a military policeman, and assault on a military policeman; and

	b.  on 14 October 1983, for failing to go at the time prescribed to his place of duty and being disrespectful in language and deportment towards a senior noncommissioned officer.

4.  On 12 July 1985, court-martial charges were preferred against the applicant for violation of Article 112a, UCMJ, with three specifications of wrongfully possessing and using marijuana in hashish form, three specifications of possessing and distributing marijuana in hashish form, one specification of wrongfully possessing and using marijuana, and one specification of possessing and distributing marijuana.  He was also charged with violation of Article 134, UCMJ, for one specification of making a false official statement.

5.  The applicant voluntarily requested that he be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. His request was denied on 5 November 1985.

6.  As a result, the applicant's court-martial commenced on 5 November 1985.  After arraignment but before pleas were entered the words "possess and" were deleted from all specifications.  With the removal of the words "possess and," the applicant pled guilty to three amended charges of use of marijuana and marijuana in hashish form.  He pled not guilty to the charges of distributing hashish and distributing marijuana.  The applicant was found guilty on one specification of and not guilty on three specification of distribution.  He was also found guilty on the four specifications of usage and on the charge of making a false official statement.  The sentence was a bad conduct discharge, forfeiture of all pay and allowances, reduction to pay grade E-1, and confinement for one year.
7.  On 31 January 1986, the Staff Judge Advocate, Headquarters, VII Corps, reviewed the findings and sentence and recommended approval as adjudged.

8.  On 5 February 1986, the applicant's counsel submitted a request to have the findings and sentence disapproved and a new trial be convened.

9.  Headquarters, VII Corps, General Court-Martial Orders Number 6, dated 10 February 1986, shows the applicant was found not guilty of three specifications of distributing hashish and marijuana, guilty of one specification of distributing hashish, guilty of four specifications of usage of marijuana and hashish, and guilty of the charge of making a false official statement.  The orders show the general court-martial convening authority approved the sentence and directed that, except for the bad conduct discharge, the sentence be executed.

10.  On 4 June 1986, the Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

11.  On 10 October 1986, the United States Court of Military Appeals denied the applicant's petition for review.

12.  On 17 November 1986, Article 71(c), UCMJ having been complied with, the bad conduct discharge was ordered executed.

13.  The applicant was discharged with a bad conduct discharge on 1 December 1986.  He had a total of 6 years, 8 months, and 24 days of creditable service with 9 months and 3 days of lost time and 116 days of excess leave.

14.  A 6 March 2009 FBI RAP sheet shows during the period of his active military service, the applicant was arrested on three charges, use of marijuana, distribution of marijuana, and submitting a false sworn statement.  The sentence portion for these charges is blank.  The RAP sheet also shows additional charges of cruelty to children and four charges of simple battery/battery - family violence.  He is shown to have been found guilty on all five of these charges.

15.  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.

16.  The FBI is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency.  It operates under its own laws, rules, and regulations under Title 28 of the U.S. Code.  The records of the FBI are under the jurisdiction of that agency and the Board does not have the authority to direct that they correct those records.

17.  Army Regulation 635-200, at chapter 3, outlines the criteria for characterization of service.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a(l), in pertinent part, states:  "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under Article 15, UCMJ."  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."  Paragraph 3-7b states that a general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS: 

1.  The applicant states he never bought or sold any controlled substance.  He was not apprehended with a controlled substance and he never tested positive for drug use.

2.  The applicant's Army records reflect that he was found not guilty on three of the four of charges of distribution of hashish and marijuana and that that portion of the charges related to possession of marijuana were removed from the charges and specification prior to his entering a plea.

3.  The court-martial order properly shows the charges as originally preferred and the fact that he was found not guilty of a portion of those charges as related to possession and distribution of marijuana and marijuana in hashish form.  It would not be proper to remove the actual reference to the original charges.

4.  Trial by court-martial was warranted by the gravity of the offenses charged, discharge proceedings were accomplished in accordance with law and regulations applicable at the time, and there is no indication of procedural errors that would tend to jeopardize the applicant's rights.  The discharge appropriately characterizes the misconduct for which the applicant was convicted and his overall record of service.


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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

6.  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.

7.  While the applicant is correct that the findings of the drug charges should also include the final disposition of the charges on the FBI RAP sheet, the Board does not have the jurisdiction or authority to correct or modify the actual FBI record.  The applicant must address this concern to the Department of Justice and the FBI.

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)                                         AR20090006947



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ABCMR Record of Proceedings (cont)                                         AR20090006947



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