IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090009036 


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 upgrade of his bad conduct discharge to an honorable discharge.

2.  The applicant states, in effect, he and his two daughters need medical care and he would also like to send his daughters to college.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 (RA) on 22 June 1978.  He reenlisted for a period of 3 years on 27 October 1981.
3.  At a special court-martial on 25 August 1983, the applicant pled guilty to wrongfully distributing some amount of marijuana to a Military Police Investigator (two specifications) and he pled not guilty to wrongfully possessing some amount of marijuana (two specifications).  The applicant was found guilty of the charge and two specifications of wrongfully distributing some amount of marijuana to a Military Police Investigator.  He was sentenced to reduction to private (PV1)/E-1, forfeiture of $375.00 pay per month for three months, confinement at hard labor for 100 days, and a bad conduct discharge.  On 29 September 1983, the convening authority approved only so much of the sentence as provided for reduction to PV1/E-1, forfeiture of $375.00 pay per month for three months, confinement at hard labor for three months, and a bad conduct discharge.  The convening authority also directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Board of Review and ordered the applicant's confinement be served in the Installation Detention Facility, Fort Polk, LA, or elsewhere as competent authority may direct.

4.  On 3 November 1983, the unserved portion of the applicant's approved sentence to confinement at hard labor for a period of three months was deferred until such time as the sentence was ordered into execution, unless the deferment was sooner rescinded.  The remaining forfeitures were also deferred until the sentence was ordered into execution, unless the deferment of confinement was sooner rescinded.  The applicant was also placed on excess leave status at that time.

5.  On 20 March 1984, the U.S. Army Court of Military Review considered the issues raised by the applicant and found them to be without merit.  The Court affirmed the findings of guilty and the sentence as approved.  On 21 June 1984, the provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.

6.  His DD Form 214 shows the applicant was discharged on 26 July 1984 with a bad conduct discharge.  At the time of his discharge he had completed
5 years, 10 months, and 28 days of net active service during the period of service under review.  He also had 68 days of lost time from 25 August to 1 November 1983.

7.  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.
8.  Army Regulation 635-200 (Personnel Separations - Enlisted Separations), 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded because he and his two daughters need medical care and he would also like to send his daughters to college.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

3.  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.

4.  The ABCMR does not upgrade a former Soldier's discharge solely to enhance his or his dependents' eligibility for veterans benefits.

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)                                         AR20090009036



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ABCMR Record of Proceedings (cont)                                         AR20090009036



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