IN THE CASE OF:	  

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090016513 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records with any supporting documents.

2.  Military Personnel Records and any advisory opinions.


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he was an excellent Soldier.  He made a costly error and he knows what he did was wrong.  He states he has since married, had a child, worked in the past, and has been a good citizen.

3.  The applicant provides no additional documentary evidence.

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 records show he enlisted in the Regular Army on 25 May 1971.  He was awarded the military occupational specialty of infantry indirect fire crewman, and was promoted to pay grade E-3.

3.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 26 February 1973 for failing to go to his appointed place of duty.

4.  Special Court-Martial Order Number 2, dated 15 January 1973, shows the applicant was arraigned and tried for failing to obey a lawful order on two occasions, for being derelict in the performance of his duties, and for failing to remain awake while on guard duty.  He was found guilty of one specification of failing to obey a lawful order, and for one specification of failing to remain awake while on guard duty.  He was sentenced to be reduced to Private/E-2 and to forfeit $200 per month for two months.

5.  Special Court-Martial Order Number 51, dated 7 August 1973, shows he was arraigned and tried for:

	a.  wrongfully knowing, or intentionally selling one plastic bag, more or less, of a controlled substance (marijuana); and

	b.  wrongfully knowing, or intentionally possessing five plastic bags of marijuana weighing 72.44 grams, more or less, and seven partially-burned cigarettes, weighing .13 grams, more or less, of a controlled substance (marijuana).

6.  He was found guilty of the specifications and charges and was sentenced to a bad conduct discharge.  The sentence was approved on 7 August 1973.  On 28 February 1974, the appellate review was completed and the sentence affirmed.  On 19 March 1974, the sentence was ordered duly executed.

7.  On 1 September 1976, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 
chapter 11, as a result of a special court-martial.  He was issued a DD Form 259A (Bad Conduct Discharge Certificate).  The DD Form 214 the applicant was issued shows he completed 5 years, 3 months, and 6 days of active service.  Item 21 (Time Lost) of this form contains the entry "720 days" and item 
27 (Remarks) contains the entry "Item 21:  Excess Leave 1,141 days."




8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:

   a.  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.

   b.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

9.  Army Regulation 635-200, paragraph 11-2, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence was ordered duly executed.

10.  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.

11.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was issued a bad conduct discharge pursuant to the approved sentence of a special court-martial for wrongfully possessing and selling a controlled substance (marijuana).  The appellate review was completed and the affirmed sentence ordered duly executed.  Conviction and discharge were affected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  The applicant's entire military record was taken into consideration and given the seriousness of the offenses his service is appropriately characterized.

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 applicant's post-service conduct and accomplishments are commendable.  However, they are insufficient to warrant upgrading a properly issued discharge.

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to an honorable or 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)                                         AR20090016513



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ABCMR Record of Proceedings (cont)                                         AR20090016513



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