IN THE CASE OF:	

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090016550 


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 states, in effect, he went into the military to serve his country and got caught up in the excitement of outside activities.  He also states he was young and made a very bad decision, which he deeply regrets.  He further states that he was given the option to serve for 3 more years, but opted to get out of the service.  He adds he is unable to get medical care or other veterans' benefits because of his discharge.

3.  The applicant provides no additional documentary 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 enlisted and entered active duty in the Regular Army for a period of 3 years on 9 August 1984.  At the time the applicant was 20 years of age, a high school graduate, and had completed a 2-year Junior Reserve Officers' Training Corps (JROTC) program.  Upon completion of training he was awarded military occupational specialty 76W (Petroleum Supply Specialist).  He was advanced to the rank of private first class/pay grade E-3 on 1 June 1985.

3.  On 13 November 1985, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of a controlled substance.  The punishment consisted of reduction to the grade of private/pay grade E-1, 30 days of extra duty, and 30 days of restriction.

4.  At a general court-martial in June 1986, the applicant pled not guilty to the portion of the charge of three specifications of wrongfully distributing marijuana in the hashish form (once on 19 December 1985 and twice on 28 December 1985) and he pled not guilty to the portion of the charge of one specification of wrongfully possessing marijuana in the hashish form on 28 December 1985 with intent to distribute the controlled substance.  The applicant was found guilty of the charge and its specifications.  He was sentenced to forfeit all pay and allowances, confinement for 18 months, and a bad conduct discharge.  On 8 August 1986, the convening authority approved the sentence, and except for the bad conduct discharge, ordered the sentence executed.

5.  On 24 October 1986, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence as approved.  On 29 May 1987, the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

6.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged on 26 June 1987 with a bad conduct discharge.  At the time of his discharge he had completed 1 year, 10 months, and 10 days of net active service during the period under review.

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 Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.
   
   a.  Paragraph 3-11 provides that a member will be given a bad conduct discharge [DD Form 259A] pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed.

	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 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 was immature and made a bad decision, and so that he may be eligible to receive medical care and other veterans' benefits.

2.  The applicant's contention that he was young and immature is not supported by the evidence of record.  The applicant was a 20-year old high school graduate with 2 years of JROTC when he entered the U.S. Army.  He had demonstrated the capacity for honorable service by the completion of training and advancement to pay grade E-3 in less than 10 months of active service.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Thus, the applicant's contention is not sufficiently mitigating to warrant relief.

3.  The applicant did not provide evidence that he was given the option to remain in the U.S. Army.  His records do not contain evidence to support this assertion.

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

5.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

6.  After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency is not appropriate.

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

8.  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)                                         AR20090016550



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016550



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1