IN THE CASE OF:	  

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090015297 


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) to an honorable discharge (HD) or a general discharge (GD).

 2.  The applicant states:

* the conduct of one of the officers during his court-martial proceedings was biased
* the missile sight commander was on the jury during his court-martial proceedings
* the jury of his peers were biased

3.  The applicant provides the listed documents:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Gray County Detention Center Certificates of Training
* A letter from the National Personnel Records Center, dated 30 July 2008
* Kentucky Department of Corrections Certificate of Training
* Commonwealth of Kentucky Oath of Office, dated 9 July 2001
* U.S. Court of Military Appeals Supplement to Petition for Grant of Review






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.  On 1 October 1981, the applicant enlisted in the Army for 3 years.  He completed training as an infantryman.  He was promoted to pay grade E-2 on 31 March 1982 and pay grade E-3 on 5 July 1982.

3.  On 19 January 1983, the applicant was convicted, pursuant to his pleas, by a special court-martial of wrongfully using marijuana on or about 28 September 1982 and of wrongfully distributing marijuana in the hashish form at the missile launch facility on or about 4 October 1982.  He was sentenced to:

* confinement at hard labor for 3 months
* reduction to the pay grade of E-1
* a forfeiture of $325.00 pay for 3 months   
* to be discharged from the Army with a BCD

4.  The convening authority approved the sentence as adjudged and ordered that the forfeiture of pay apply to pay becoming due on or after the date the sentence was approved.

5.  The applicant provides the Supplement to a Petition for Grant of Review that was submitted to the U.S. Court of Military Appeals by his defense attorney.  The petition addressed the following issues:

* whether the Military Judge abused his discretion by disallowing the applicant's challenge for cause of a major who was a court member
* whether the assistant trial counsel's improper remarks made in argument prior to the sentencing phase were individually and cumulatively prejudicial to the applicant

6.  In the petition, the applicant's defense attorney requested that the case be remanded to the Army Court of Military Review for meaningful reassessment of the sentence and that the court grant his petition for a Grant of Review.

7.  The U.S. Army Court of Military Review, having found the findings of guilty and the sentence correct in law and fact, and having determined on the basis of the entire record that both should be approved, such findings of guilty and the sentenced were affirmed on 6 October 1983.  The U.S. court denied a petition for a grant of review of 1 February 1984.

8.  On 21 February 1984, the U.S. Army Correctional Activity, Fort Riley, Kansas, noted that the findings and sentence as approved by the convening authority had been affirmed, ordered the sentence to be executed.

9.  On 12 March 1984, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of a duly reviewed and affirmed special court-martial conviction.  He had completed 2 years, 3 months, and 10 days of net active service this period.  He was furnished a BCD.

10.  A review of the available records does not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  The applicant submits six certificates showing that he completed training courses at the Grayson County Detention Center, Kentucky Department of Corrections.  He also submits his Commonwealth of Kentucky Oath of Office showing that on 9 July 2001, he took his Oath of Office as a Deputy Jailer.

12.  Title 10, U. S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.



14.  Paragraph 3-7a of Army Regulation 635-200 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.  

15.  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's contentions and the documents that he submitted were considered and he is commended for his post-service conduct.  However, he has not proven bias with respect to his court-martial action. 

2.  He was convicted, pursuant to his pleas, by a special court-martial for using marijuana and for distributing marijuana (in the hashish form).  He has not shown that the process and/or procedures used in determining his guilt or innocence were erroneous or unjust.  The issues he now raise could have been/should have been finally adjudicated in the appellate process.

3.  His records show that was given a BCD pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence duly executed.

4.  Based on his overall record of service, he did not serve honorably or under honorable conditions.  The BCD he received appropriately characterizes his service and it is not severe considering the nature of his offenses.

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)                                         AR20090015297



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ABCMR Record of Proceedings (cont)                                         AR20090015297



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