IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090021912 

14THE 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.

2.  The applicant states he was wrongfully accused and convicted by a military court.  A statement by another service member led to the injustice done to him.  He had completed 3 years of honorable service with no prior trouble and no punishments before the court-martial.  At the time of the court-martial he could not afford an attorney and he was allowed no time to attain better representation. 
Three or four other service members testified on his behalf, but the one service member who was most important to his case was not permitted to testify.  He was young at the time and he did not know the proper way to handle what was happening to him.

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and copies of his discharge orders and DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 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.  His military record shows he enlisted in the Regular Army in pay grade E-1 on 4 March 1980 for 3 years.  He completed training and was awarded military occupational specialty 13B (Cannon Crewman).  He served in Germany from 6 December 1981 through 25 August 1982.  He was promoted to pay grade E-4 on 22 March 1982.

3.  He was honorably released from active duty on 24 May 1983 for the purpose of immediate reenlistment.  He reenlisted in the Regular Army on 25 May 1983.

4.  On 28 November 1983, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company C, 1st Battalion, 5th Training Brigade, U.S. Army Training Center, Fort Dix, New Jersey.

5.  In December 1983, he was convicted by a special court-martial of one specification of wrongful possession of some amount of marijuana from 2 to 4 November 1983 and one specification of wrongful distribution of some amount of marijuana on or about 2 November 1983.  He was sentenced to a reduction to pay grade E-1, confinement at hard labor for 2 months, and to be discharged from the Army with a bad conduct discharge.  The sentence was adjudged on 20 December 1983 and he was placed in confinement.

6.  The convening authority approved the sentence on 16 January 1984.  He was reduced to pay grade E-1 on the same day.

7.  On 13 February 1984, he accepted punishment under Article 15, Uniform Code of Military Justice, for being drunk and disorderly in the company area and failing to obey a lawful order on 12 February 1984.  His punishment included a forfeiture of $139.00 pay for 1 month and 14 days of extra duty and restriction.  He did not appeal the punishment.

8.  On 30 May 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

9.  On 15 January 1985, his bad conduct discharge was ordered to be duly executed.  He was discharged on 15 February 1985 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial.  He was credited with 4 years, 9 months, and 23 days of net active service and lost time from 20 December 1983 to 8 February 1984 due to confinement.

10.  His military records show the highest rank and pay grade he attained while on active duty was specialist four, pay grade E-4, prior to his 1985 discharge.  His record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.

11.  On 9 June 1987, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 provided that a Soldier would 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 sentence affirmed before it could be duly executed.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

15.  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 change a court-martial 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.  The evidence shows he was convicted by a special court-martial of wrongful possession of some amount of marijuana and wrongful distribution of some amount of marijuana.  He was discharged pursuant to the sentence of a special court-martial and was issued a bad conduct discharge after the sentence was affirmed.

2.  He provided no evidence to show that his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.  He provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations with due process.  He submitted no evidence other than his assertions he was wrongfully accused and he did not know how to handle what happened to him.

3.  Trial by special court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which the applicant was convicted.  His offenses, when weighed with his overall disciplinary history, warranted this punishment.

4.  The Board is empowered to change the characterization of and reason for the discharge if clemency is determined to be appropriate.  His record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.  Given the above and after a thorough review of his record and the serious nature of his offenses, there is no cause for clemency.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any 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)                                         AR20090021912



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ABCMR Record of Proceedings (cont)                                         AR20090021912



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