IN THE CASE OF:	

		BOARD DATE:	  01 April 2010

		DOCKET NUMBER:  AR20090013915 


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, in effect, upgrade of his bad conduct discharge.

2.  The applicant states the punishment did not fit the crime.  He states the driver of the car gave him $10.00 which he gave to the seller and passed the marijuana to the driver.

3.  The applicant provides no additional evidence 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 military personnel records show he enlisted in the Regular Army on 29 June 1973 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 83D (Process Photography).

3.  On 19 July 1974, the applicant was assigned to the 3rd Battalion, U.S. Army Engineer School Brigade at Fort Belvoir, VA.

4.  On 3 February 1975, the applicant was tried before a general court-martial.  He was found guilty of wrongful transfer of marijuana.  The applicant's sentence consisted of confinement at hard labor for 30 days, forfeiture of all pay and allowances, reduction to pay grade E-1, and a bad conduct discharge.

5.  On 24 April 1975, the convening authority approved the sentence.

6.  On 22 August 1975, the United States Army Court of Military Review affirmed the findings and the sentence of the general court-martial.

7.  U.S. Army Engineer Center, Fort Belvoir, Special Orders Number 225, dated 21 November 1975, discharged the applicant.  The effective date of discharge listed on the orders is 24 April 1975.

8.  A letter to the Commander, U.S. Army Administrative Center, St. Louis, MO, dated 15 June 1976, from Headquarters, U.S. Army Engineer Center, Fort Belvoir, requested that all of the applicant's personnel records be returned to Fort Belvoir for the purpose of revoking the DD Form 214 and discharge orders.  The letter stated that the discharge proceedings were erroneous due to the applicant having an appeal pending.

9.  A memorandum for the record, dated 17 June 1977, from the U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN, states the applicant was erroneously discharged while on excess leave awaiting results of appellate action.

10.  Corrections to the applicant's date of discharge as a result of court-martial are not available for review.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge; provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed.

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.

13.  The Table of Maximum Punishments of The Manual for Courts-Martial (MCM), United States, 1969 (Revised edition) shows that the maximum punishment for the wrongful use, possession, transfer, or sale of drugs, marijuana was a dishonorable discharge and 5 years confinement.

14.  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.

15.  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 his bad conduct discharge should be upgraded.  He contends his punishment was too harsh for the crime.

2.  The applicant's sentence at his general court-martial included a bad conduct discharge and only 30 days confinement.  The table of maximum punishments in the MCM shows that he could have received 5 years confinement and a dishonorable discharge.  Therefore, it is apparent that the members of his general court-martial considered any mitigating circumstances when they handed down his sentence.

3.  The evidence shows that 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 discharge appropriately characterizes the misconduct for which he was convicted.

4.  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.

5.  The applicant's entire record of service was considered.  The applicant's records document no acts of valor or significant achievement.  Given the seriousness of the offense for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge.

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to a general, under honorable conditions 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)                                         AR20090013915



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ABCMR Record of Proceedings (cont)                                         AR20090013915



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