IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090008235 


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 an upgrade of his bad conduct discharge (BCD).

2.  The applicant states, in effect, that he was advised he could request an upgrade of his discharge after 10 years.

3.  The applicant provides no additional documentation 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 U.S. Army Reserve Delayed Entry Program on 18 December 1978.  He enlisted in the Regular Army in pay grade E-1 on 13 February 1979 for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 95B, military policeman.

3.  On 20 July 1979, the applicant's company commander initiated action blocking the applicant's promotion to pay grade E-2.  The company commander stated that the applicant's duty performance had been such as not to warrant promotion consideration at that time.

4.  The applicant was advanced to pay grade E-2 on 1 September 1979 and to pay grade E-3 on 13 February 1980.

5.  On 23 September 1980, the applicant was apprehended by military authorities and placed in confinement.  He was returned to duty on 25 September 1980 pending trial.

6.  On 10 November 1980, the applicant was convicted pursuant to his pleas by a general court-martial of four specifications of the wrongful possession of marijuana on 19 August 1980 and 6, 7, and 8 September 1980 and four specifications of wrongfully selling marijuana on 19 August 1980 and 6, 7, and 8 September 1980.  The applicant was sentenced to a reduction to pay 
grade E-1, forfeiture of $400.00 per month for 4 months, confinement at hard labor for 6 months, and to be discharged from the Army with a BCD.  The sentence was adjudged on 12 November 1980 and approved on 18 December 1980.

7.  On 20 February 1981, the U.S. Army Court of Military Review affirmed the finding of guilty and the sentence.

8.  On 5 March 1981, the applicant acknowledged receipt of a copy of the decision and his right to petition the U.S. Army Court of Military Review for review of his conviction and sentence within 30 days.

9.  On 12 June 1981, the Commandant, U.S. Army Disciplinary Barracks, ordered the applicant's sentence to a BCD, forfeiture of $400.00 pay per month for 4 months, and reduction to pay grade E-1 duly executed.  That portion of the sentence pertaining to confinement had been served.

10.  The applicant was discharged on 17 July 1981 in pay grade E-1 under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 11, paragraph 11-2, as a result of court-martial and issued a BCD.  He was credited with 2 years and 11 days of net active service and lost time from 23 to 24 September 1980 and from 12 November 1980 to 2 April 1981 due to pre-trial confinement and imprisonment.  He was also charged with 106 days of excess leave.

11.  The applicant’s available records show the highest pay grade he attained while on active duty was E-3 prior to his 1981 discharge.  His record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11, paragraph 11-2, provided, in pertinent part, that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the sentence affirmed before it coould be duly executed.

13.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for separation specifically allowed such characterization.

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 change a court-martial 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his BCD.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  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 characterized the misconduct for which the applicant was convicted.

3.  The evidence of record shows that the applicant was convicted by a general court-martial for the wrongful possession of marijuana on four different dates and wrongfully selling marijuana on four different dates.  He was discharged pursuant to the sentence of a general court-martial and was issued a BCD.

4.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offense.  He has not provided evidence sufficient to mitigate the character of his discharge.

5.  The Board is empowered to change the characterization of and reason for the discharge if clemency is determined to be appropriate.  His record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.  Given the above and after a thorough review of the applicant’s record and the serious nature of his offenses, there is no cause for clemency.

6.  Additionally, the applicant is advised that the Army does not now have nor has it ever had a policy of automatically upgrading an individual's discharge after 10 years or any other passage of time.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise 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)                                         AR20090008235



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008235



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1