IN THE CASE OF:	  

		BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090018665 


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 his bad conduct discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, the charge that led to his bad conduct discharge is not a reason for the issuance of this type of discharge today.  He states a bad conduct discharge is not issued for marijuana possession.  He states he was not provided treatment at the time and he received the harshest of discharges.

3.  The applicant provides six personal references.

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 4 March 1966 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 76M (Ammunition Record Clerk).

3.  On 26 September 1966, the applicant pled guilty and was found guilty by a special court-martial of being disrespectful towards a commissioned officer.  His sentence consisted of 3 months in confinement at hard labor.  No previous convictions were considered.  The sentence was approved on 26 September 1966.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ):

   a.  on 13 February 1967 for failure to go to his appointed place of duty.

   b.  on 24 March 1967 for failure to obey a lawful order.

5.  On 5 June 1968, the applicant pled not guilty but was found guilty by a general court-martial of violation of a lawful general regulation by unlawfully possessing and selling drugs containing Phenobarbital and amphetamine.  His sentence consisted of confinement at hard labor for 1 year and a forfeiture of all pay and allowances for 1 year.  No previous convictions were considered.  The convening authority approved the sentence on 24 July 1968.

6.  On 18 September 1968, the Army Board of Review affirmed the findings of guilty and only so much of the sentence as provided for confinement at hard labor for 9 months and a forfeiture of $96.00 pay for 9 months.  On 29 October 1968, the unexecuted portion of the applicant's forfeitures was suspended and on 4 December 1968 the unexecuted portion of his sentence to confinement was remitted.

7.  On 23 May 1969, the applicant was tried before a general court-martial:

	a.  He pled guilty and was found guilty of being absent without leave (AWOL) from on or about 19 March to 29 March 1969.

	b.  He pled not guilty but was found guilty of wrongful possession of one ounce, more or less, of marijuana. 

	c.  His sentence consisted of reduction to pay grade E-1, confinement at hard labor for 3 years, a forfeiture of all pay and allowances, and to be dishonorably discharged from the service.
8.  On 12 July 1969, the convening authority approved the sentence.

9.  On 4 May 1970, the United States Army Court of Military Review (USACMR) set aside the findings of guilty of the charge for wrongful possession of marijuana.  The remaining findings were affirmed.  In that ruling the USACMR added that the designated convening authority may dismiss the charge that had been set aside and reassess the sentence on the basis of the affirmed findings of guilty or set aside the sentence and order a rehearing.

10.  On 30 June 1970, the convening authority dismissed the charge for wrongful possession of marijuana.  The convening authority approved only so much of the sentence that provided for reduction to pay grade E-1, a bad conduct discharge, confinement at hard labor for 6 months, and a forfeiture of all pay and allowances.

11.  On 23 October 1970, the United States Army Court of Military Review affirmed the findings and sentence as modified.  The Court noted that in accordance with paragraph 127c, Section B, of the Manual for Courts-Martial, United States (1969) the applicant's two prior convictions within 3 years immediately preceding a period of AWOL provided for the maximum sentence in his case to include a bad conduct discharge.  A petition for grant of review was denied by the U.S. Court of Military Appeals on 9 February 1971.

12.  On 12 March 1971, the applicant was discharged with a bad conduct discharge.  

13.  The personal references submitted by the applicant indicate he is a kind, reliable, honest, and dependable.  He is also friendly, pleasant, trustworthy and responsible.

14.  The Table of Maximum Punishments of The Manual for Courts-Martial, United States, 1969 (Revised edition) stated the maximum punishment for being AWOL for more than 3 days but not more than 30 days was 6 months in confinement and a forfeiture of 2/3 pay not to exceed 6 months.  Paragraph 127c, Section B stated if an accused was found guilty of an offense or offenses for none of which a dishonorable or bad conduct discharge was authorized, proof of two or more previous convictions adjudged by a court during the 3 years next preceding the commission of any offense of which the accused stands convicted would authorize a bad conduct discharge and a forfeiture of all pay and allowances.


15.  The Table of Maximum Punishments of the Manual for Courts-Martial, United States, 2008 Edition states the maximum punishment for being AWOL for more than 3 days but not more than 30 days is 6 months in confinement and a forfeiture of 2/3 pay for 6 months.  Rule 1003(d)(2) states if an accused is found guilty of an offense or offenses for none of which a dishonorable or bad-conduct discharge is otherwise authorized, proof of two or more previous convictions adjudged by a court-martial during the 3 years next preceding the commission of any offense of which the accused stands convicted shall authorize a bad-conduct discharge and a forfeiture of all pay and allowances.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  Chapter 11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and the appellate review must be completed and the affirmed sentence ordered duly executed.

17.  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.

18.  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 because it was too harsh and he was not provided treatment.  He contends under today's standards he would not be issued a bad conduct discharge for the same marijuana charge.  


2.  The applicant was not discharged because of a marijuana conviction.  This charge was set aside by the U.S. Army Court of Military Review and dismissed by the convening authority.  He was sentenced to a bad conduct discharge for his AWOL conviction based on having two previous court-martial convictions within the 3 years prior to his latest offense.  The Manual for Courts-Martial (1969) provided for the inclusion of a bad conduct discharge when an individual had two or more court-martial convictions within 3 years of his latest offense.  Therefore, his sentence to a bad conduct discharge was appropriate.

3.  The current Manual for Courts-Martial (2008) provides the same provisions when an individual has two or more convictions by a court-martial within the last 
3 years from the date of current offense.  Therefore, the applicant could receive the same punishment under current standards.

4.  The available evidence shows 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.

5.  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.  

6.  The applicant's post service achievements and conduct are noted.  However, good post service conduct alone is not sufficiently mitigating to upgrade a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

7.  The applicant accepted NJP on two occasions and was convicted by one special court-martial and two general courts-martial within a 1 1/2 year period.  Therefore, his service is considered unsatisfactory.  

8.  In view of the foregoing, there is insufficient basis to upgrade the applicant's bad conduct discharge to a general discharge under honorable conditions.


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)                                         AR20090018665



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018665



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1