BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000237 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by upgrading his discharge from bad conduct to honorable.

2.  The applicant states that it has been more than 20 years since his discharge.

3.  The applicant did not provide any documentation to support his request.

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 in the Regular Army on 4 January 1978 for a period of 3 years.  After completion of basic and advanced individual training, he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).  His records show he reenlisted on 5 July 1980 for a period of 4 years in the rank/pay grade of specialist/E-4.  On 10 December 1981, he voluntarily extended his 4-year reenlistment for a period of 11 months to meet the service-remaining requirement for an overseas assignment with dependents.

3.  Headquarters, V Corps, Special Court-Martial Order Number 26, dated 19 June 1984, indicates the applicant was convicted by a special court-martial under the Uniform Code of Military Justice (UCMJ) for violation of Article 134 for wrongful possession of hashish with intent to distribute on or about 2 March 1984 and two counts of wrongful distribution of marijuana in the hashish form on or about 25 February 1984 and 28 February 1984.  He was also charged with violation of Article 80 for attempting to knowingly and wrongfully use cocaine on or about the period 24 February 1984 to 2 March 1984.  He was sentenced to reduction to the rank/pay grade of private/E-1, forfeiture of $300.00 pay per month for 2 months, confinement at hard labor for a period of 2 months, and a bad conduct discharge.  On 19 June 1984, his sentence was approved.

4.  The applicant was discharged effective 19 April 1985 under the provisions of Army Regulation 635-200 (Enlisted Separations), section IV, chapter 3, and furnished a Bad Conduct Discharge Certificate.  He completed 7 years, 1 month, and 17 days of active duty with 59 days of lost time due to military confinement and absence without leave and 253 days of excess leave.

5.  The applicant applied to appear before the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 8 March 1988, the applicant did not appear as scheduled and the hearing was conducted accordingly.  On 10 June 1988, the board determined the applicant was properly and equitably discharged and denied his request.

6.  Army Regulation 635-200 governs the separation of enlisted soldiers on active duty.  Paragraph 11-2 states that a member 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 has been ordered duly executed.

7.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

8.  Title 10, U.S. Code, section 1552(f), states that the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the UCMJ or to take clemency action.

9.  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.

10.  The Manual for Courts-Martial provides the maximum sentences that may be imposed if convicted at trial by court-martial.  It provides that the maximum sentence that may be imposed for a conviction by a special court-martial for a single violation of Article 134 for wrongful possession, manufacture, distribution or intent to distribute drugs, is a bad conduct discharge, 6 months of confinement, reduction to pay grade E-1, and forfeiture of two-thirds pay for 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to an honorable discharge.

2.  The evidence shows the applicant was tried and convicted for four specifications of drug-related offenses by special court-martial on 19 June 1984.  He was later discharged and was issued a Bad Conduct Discharge Certificate.

3.  The applicant applied to the ADRB for upgrade of his discharge and on 10 June 1988 the board denied his request.

4.  Trial by 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 characterizes the misconduct for which the applicant was convicted.

5.  The Manual of Courts-Martial shows the applicant did not receive the maximum punishment for the offenses of which he was convicted.

6.  After a thorough review of the applicant's entire record of service, it was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offenses for which he was convicted and confined, it is also clear that his service was not satisfactory and thus did not meet the criterion for an honorable discharge.  Therefore, his bad conduct discharge is equitable and there is no basis for changing his discharge as requested.

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)                                         AR20100000237



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR