IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090016992 


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 honorable.

2.  The applicant states that he served six years in the Army, that he was a kid and made a bad decision 31 years ago, that he served with honor, and that he was punished enough.  He goes on to state that when he joined the service at age of 18 years he had never smoked a joint or used any type of drug.  On the last night of basic training he was introduced to marijuana which started him on a downhill spiral that ended up with him going to Leavenworth and getting a bad conduct discharge for possession of drugs.  He contends that he went to Leavenworth and did his 18-month sentence and has lived with the shame of being discharged under other than honorable conditions. 

3.  The applicant provides no 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 was born on 14 September 1953.  He enlisted in the Regular Army on 31 August 1972 for a period of 2 years.  He trained as a food service specialist and was honorably discharged on 26 August 1974 for immediate reenlistment.  He reenlisted on 27 August 1974 for a period of 6 years.

3.  On 4 October 1976, nonjudicial punishment was imposed against the applicant for possessing an illegal substance (a pipe containing residue of marijuana).  His punishment consisted of a forfeiture of pay. 

4.  On 12 October 1976, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay (suspended) and extra duty.

5.  On 19 September 1977, contrary to his pleas, the applicant was convicted by a general court-martial of two specifications of possessing marijuana and heroin.  He was sentenced to be reduced to E-1, to be confined at hard labor for 
18 months, and to be discharged from the service with a bad conduct discharge.  On 1 November 1977, the convening authority approved the sentence.

6.  On 31 July 1978, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  On 14 November 1978, the convening authority ordered the bad conduct discharge to be executed.

8.  Accordingly, the applicant was discharged with a bad conduct discharge on 30 April 1979 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial.  He had served a total of 5 years, 6 months, and 17 days of creditable active service with 415 days of lost time due to being in confinement. 

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states that a Soldier will 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.


10.  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.  

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, United States 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.  Age is not a sufficiently mitigating factor.  The applicant was almost 19 years of age when he enlisted in the Regular Army.  In addition, he completed 5 years of service prior to his general court-martial conviction.  

2.  The applicant's contention that on the last night of basic training he was introduced to marijuana which started him on a downhill spiral that ended up with him getting a bad conduct discharge for possession of drugs was noted.  However, he could have referred himself for treatment.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  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.

4.  The applicant's record of service included two nonjudicial punishments, one general court-martial conviction, and 415 days of time lost.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or an honorable 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)                                         AR20090016992



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ABCMR Record of Proceedings (cont)                                         AR20090016992



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