IN THE CASE OF:	

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090008771 


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 to an honorable discharge.

2.  The applicant states that he feels he was set-up; another Soldier gave his name after the other Soldier was caught with drugs.  He did not have anything to do with what the other Soldier was doing and the court would not listen to him.

3.  In support of his application, the applicant provides copies of his 1979 Honorable Discharge Certificate and his 1985 DD Form 214 (Certificate of Release or Discharge from Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The applicant’s representative did not provide any statement or 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's record shows he enlisted in the Regular Army (RA) in pay 
grade E-1 on 19 December 1972 for a period of 3 years.  He completed training and was awarded military occupational specialty 71L (Administrative Specialist).  He extended his reenlistment on 26 March 1975 for 3 years.  He was promoted to pay grade E-5 on 20 February 1977.  He served in Korea from 4 August 1976 to 1 August 1977.

3.  The applicant was honorably discharged for the purpose of reenlistment on 
13 February 1979.  He reenlisted in the RA in pay grade E-5 on 14 February 1979, for 3 years.  He served in Germany from 23 June 1980 to 18 May 1983.  He was promoted to pay grade E-6 on 4 August 1982.

4.  On 15 February 1983, the applicant was convicted by a special court-martial of one specification of wrongfully possessing 250 grams of marijuana in the hashish form on at least 30 separate occasions from 1 April 1982 to November 1982 and one specification of wrongfully using some amount of marijuana in the hashish form on at least 30 separate occasions from 1 April 1982 to 30 November 1982.  The applicant was sentenced to confinement at hard labor for 30 days, a reduction to pay grade E-1, and to be discharged from the Army with a bad conduct discharge.  The sentence was adjudged on 29 March 1983.

5.  On 29 April 1983, the convening authority approved only so much of the sentence as provided for 5 days confinement, reduction to E-1, and a bad conduct discharge.  

6.  The U.S. Army Court of Military Review affirmed the findings and the sentence.

7.  On 16 April 1985, the U.S. Court of Military Appeals found specification number one of the charge (possession of hashish) was multiplicous for findings with specification number two of the charge (use of hashish).  The court set aside and dismissed specification number one.  The court affirmed the U.S. Army Court of Military Review’s decision as to specification number two and the sentence.

8.  On 24 June 1985, Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, noted that the remaining findings of guilty and the sentence to a bad conduct discharge, confinement not in excess of 5 days, and reduction to pay grade E-1 had been affirmed.  The sentence was ordered duly executed.  

9.  The applicant was discharged on 26 July 1985 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, as a result of court-martial.  He was credited with completing 6 years, 5 months, and 9 days of net active service and he had
5 days of lost time due to being in confinement.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 at the time provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before the bad conduct discharge could be duly executed.

11.  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 meets the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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.

13.  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.  The evidence shows the applicant was convicted by a special court-martial for wrongful possession and use of marijuana on at least 30 occasions.  The charge of wrongful possession of marijuana was subsequently set aside and dismissed, but the remaining findings of guilty and the sentence were affirmed and ordered duly executed.  He was discharged pursuant to the sentence of a special court-martial and was issued a bad conduct discharge after the sentence was affirmed.

2.  Trial by special court-martial was warranted by the gravity of the offenses charged.  A bad conduct discharge is adjudged by a court-martial when it determines a Soldier should be separated for bad conduct.  It appears the applicant's offenses warranted this punishment.

3.  The applicant has not submitted evidence to show that his discharge is unjust. There is no error or injustice apparent in his record.  The applicant has not provided any evidence or argument to show his discharge should be upgraded to honorable.  He was properly discharged in accordance with pertinent regulations, with due process.  

4.  The applicant’s contentions relate to evidentiary matters that were/should have been raised in the appellate process.

5.  The Board is empowered to change the characterization of service and reason for the discharge if clemency is determined to be appropriate.  The applicant’s record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge to honorable.  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.  The applicant's available military records do not provide a sufficient basis for granting clemency as a matter of equity or fairness.  The applicant's desire to have his discharge upgraded is acknowledged; however, in most cases a discharge is not upgraded based solely on a previous honorable discharge.

7.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any 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)                                         AR20090008771



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ABCMR Record of Proceedings (cont)                                         AR20090008771



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