BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090007199 


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 his bad conduct discharge (BCD) be upgraded.

2.  The applicant states he feels he was forced to plead guilty to something he did not do and did not receive proper or adequate counsel.  

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 enlisted in the Regular Army on 13 September 1978, completed training, and was awarded the military occupational specialty 19E (Armor Crewman).  He reenlisted on 29 June 1981.

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, as follows:

	a.  on 18 January 1980, for being absent without leave (AWOL);

	b.  on 13 February 1980, for wrongful possession of marijuana;

	c.  on 3 December 1981, for disrespectful language toward a noncommissioned officer; and

	d.  on 21 December 1981, for sleeping on guard duty;

4.  The record shows the applicant was AWOL on 3 October 1980 but there is no record of what if any action was taken related to this period of AWOL. 

5.  On 24 March 1982, the applicant pled guilty to possession, sale, and transfer of marijuana.  In accordance with his plea a special court-martial found him guilty on all charges and sentenced him to confinement for three months, reduction to private (E-1), forfeiture of $250.00 pay per month for three months and to a bad conduct discharge.  On 9 April 1982, except for reducing the period of confinement to 45 days, the court-martial convening authority approved the findings and sentence and directed that, except for the BCD, the sentence be executed. 

6.  The applicant was placed on excess leave pending completion of appellate review effective 6 May 1982.

7.  The applicant's sentence was affirmed by the United States Army Court of Military Review on 24 May 1982.

8.  The Court of Military Appeals denied the applicant's petition for review on        4 September 1982.

9.  The applicant was discharged with a bad conduct discharge on 16 November 1982.  He had 4 years and 21 days of creditable service with 44 days of lost time.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

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 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.

12.  Army Regulation 635-200 is 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 states he feels he was forced to plead guilty and did not receive proper or adequate counsel.  

2.  The applicant's record shows a pattern of misconduct covering a period of two years and culminating in his court-martial conviction on charges of illegal drug possession, transfer, and sale.  The severity of the drug charge is compounded by the fact that he had received NJP on a possession of illegal drugs a year earlier.

3.  The applicant's contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.

4.  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 characterizes the misconduct for which the applicant was convicted.

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.




      _______ _   _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)                                         AR20090007199





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ABCMR Record of Proceedings (cont)                                         AR20090007199



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