IN THE CASE OF:	  

		BOARD DATE:	       26 AUGUST 2009

		DOCKET NUMBER:  AR20090007360 


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.

2.  The applicant states that there was no physical evidence (of the charges against him), only hearsay.  There was no urinalysis performed; however, there were two individuals caught with drugs who gave statements.  He also states that his first sergeant held a grudge against him for no apparent reason and that his legal council was inept and failed to represent him.  His legal council formed an opinion that he (the applicant) had no chance of winning his case; therefore, he reluctantly pled guilty to ease the burden on his wife and child. 

3.  The applicant did not provide any additional documentary evidence in support of his request.  

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 records show he enlisted in the Regular Army for a period of 3 years on 27 July 1982.  He completed basic combat and advanced individual training and was awarded military occupational specialty 27G (Chaparral/Redeye Repairer).  The highest rank/grade he attained during his period of military service was specialist four/E-4.

3.  The applicant’s records also show he served in Germany from on or about 27 May 1983 to 24 May 1986.  His awards and decorations include the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar.  

4.  On 7 August 1985, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing two ration cards on or about 31 May 1985 and for breaking restriction on or about 30 July 1985.  His punishment consisted of a reduction to private first class (PFC)/E-3 and a forfeiture of $200.00 pay for 
2 months.  He appealed his punishment on 12 August 1985; however, on or about 13 August 1985 his appeal was denied. 

5.  On 17 October 1985, the applicant pled guilty at a special court-martial to one specification of wrongfully using some amount of marijuana in the hashish form between 1 August 1984 through May 1985; one specification of wrongfully distributing some amount of marijuana in the hashish form between 1 August 1984 and May 1985; and one specification of breaking restriction on 14 June 1985.  The court sentenced the applicant to a reduction to private (PVT)/E-1, confinement for 60 days, and a bad conduct discharge.  The sentence was adjudged on 17 October 1985.

6.  On 18 December 1985, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

7.  On 18 March 1986, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  Headquarters, Fort Bragg, NC, Special Court-Martial Order Number 74, dated 21 July 1986, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.
9.  The applicant was discharged from the Army on 23 September 1986.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations) as a result of court-martial, with a bad conduct discharge.  This form further shows the applicant completed a total of 4 years and 9 days of creditable military service and he had 49 days of lost time.

10.  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.  

11.  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.

12.  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 that his bad conduct discharge should be upgraded.

2.  With respect to the applicant’s arguments, there is no requirement for a urinalysis to be performed to convict a Soldier for drug abuse.  A witness statement and/or an investigation by military police or criminal investigation command officials would have been sufficient to convict him.  Additionally, there is no evidence in the available record and the applicant did not provide any substantiating evidence that shows his first sergeant held a grudge against him or that the first sergeant's feelings towards him prohibited him from receiving fair treatment or due process.  Likewise, there is no evidence in the available record and the applicant did not provide any substantiating evidence that shows he was not properly represented by counsel or that he reluctantly pled guilty to ease the burden on his wife and child.  

3.  The evidence of record shows the applicant’s trial by special 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 characterized the misconduct for which the applicant was convicted.  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.

4.  The applicant's contentions relate to evidentiary matters which could have been raised adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.

5.  After a careful review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge.

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)                                         AR20090007360



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ABCMR Record of Proceedings (cont)                                         AR20090007360



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