IN THE CASE OF:	  

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090011164 


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 a general discharge.

2.  The applicant does not provide an explanation.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 1 June 1979 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 76D (materiel supply specialist).

3.  On 26 February 1981, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order.  His punishment consisted of a reduction to E-1, a forfeiture of pay, and extra duty.

4.  On 28 April 1981, nonjudicial punishment was imposed against the applicant for possessing marijuana.  His punishment consisted of a reduction to E-1, a forfeiture of pay, and extra duty.

5.  On 1 June 1981, nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty.  His punishment consisted of extra duty.

6.  On 5 October 1981, the applicant was convicted in accordance with his pleas by a special court-martial of two specifications of possessing marijuana, two specifications of selling marijuana, and two specifications of transferring marijuana.  He was sentenced to forfeit $330.00 pay per month for 3 months, to be confined at hard labor for 3 months, and to be discharged from the service with a bad conduct discharge.  On 17 November 1981, the convening authority approved the sentence.

7.  On 7 October 1981, a bar to reenlistment was imposed against the applicant.

8.  The decision of the U.S. Army Court of Military Review is not available.  However, on 6 May 1982, the convening authority ordered the bad conduct discharge to be executed, indicating the sentence was affirmed.

9.  Accordingly, the applicant was discharged with a bad conduct discharge on 14 May 1982 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of a court-martial.  He had served a total of 2 years, 8 months, and 13 days of creditable active service with 93 days of lost time due to confinement.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, stated 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 affirmed sentence ordered duly executed.

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 trial by court-martial was warranted by the gravity of the offenses charged.  The 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.

2.  The applicant's record of service included a bar to reenlistment, three nonjudicial punishments, one special court-martial conviction for numerous drug offenses, and 93 days of lost time.  As a result, his record of service did not warrant a more favorable discharge.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general 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.



      ____________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)                                         AR20090011164



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ABCMR Record of Proceedings (cont)                                         AR20090011164



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