IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100000969 


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 clemency and an upgrade of his bad conduct discharge (BCD) to a general discharge under honorable conditions.

2.  The applicant states:

* His honorable service and record of promotions prior to getting into trouble should be considered
* While he recognizes the seriousness of his misconduct he has led a productive life since his discharge
* Clemency is warranted based on his post-service citizenship/conduct

3.  The applicant provides an undated, self-authored letter addressed "To Whom It May Concern" and 18 records and letters as outlined in his "Application for Correction of Military Records-Support Documents."

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 records are not available for review.  This case is being considered using the documents submitted by the applicant.

3.  After completing 2 years, 10 months, and 21 days of total prior active service, the applicant reenlisted in the Regular Army as a parachute rigger on 23 June 1981, for 6 years, in the pay grade of E-5.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows that on 15 April 1982 he was awarded an indirect fire infantryman primary military occupational specialty.  He was reduced to pay grade E-4 on 14 November 1982. However, the basis for his reduction is not shown in the available evidence.

5.  His DA Form 2-2 (Insert Sheet to DA Form 2-1, Record of Court-Martial Conviction) shows that on 27 October 1983 he was convicted by a special 
court-martial of possession of marijuana with intent to distribute and use of marijuana.  His sentence included:

* A BCD
* Confinement at hard labor for 2 months
* Reduction to pay grade E-1
* A forfeiture of $190.00 pay for 4 months.

6.  The applicant's DA Form 2-2 shows his sentence was affirmed and duly executed in Special Court-Martial Order 101, dated 24 May 1985.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) covering this period of service shows he was discharged on 5 June 1985, under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 3, as a result of a court-martial conviction.  He had completed 3 years, 9 months and 24 days of net active service this period and he was issued a BCD.

8.  A review of the available records do not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.


9.  In the undated, self-authored letter submitted by the applicant he states:
* He now understands how naïve, foolish, and ignorant he was for failing to trust the people who could have helped him
* He is seeking self respect and self forgiveness
* He is ashamed and sorry for what he has done and for declining the help that was offered to him
* He was abandoned by his father at birth
* He was molested by two priests and sent to a home by his mother
* He trusted no one
* He joined the military to get away from his life and he began smoking marijuana
* He wanted to fit in with the crowd
* He obtained the pay grade of E-5 in 2 years
* He was told by his superiors "Just keep it out of the barracks, you'll be fine"
* After he tested positive on a company drug test, he was sent to rehabilitation and he walked out on his own
* If he had been forced to return to rehabilitation, he would have made the Army his career
* He was arrested buying Tetrahydrocannabinol (THC) and he lied by blaming someone else
* He was told he could request an upgrade of his discharge after 7 years
* He earned the most improved Soldier award and he requested to be reinstated but due to a desire to "reduce the Army" he was a casualty
* He has not been in any trouble since his discharge
* He has overcome all of his weaknesses and distrust in people
* He believes he can still serve his country as an Air Conditioning and Heating civilian contractor overseas

10.  The applicant submits two letters from police departments located in the States of Texas and New York.  Both letters confirm there are no records of the applicant's arrest or conviction for any criminal offenses.  

11.  He also submits supporting letters from friends, associates, organizations and/or employers attesting to his good character, post-service conduct and event participation.

12.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.
13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

14.  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.

15.  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's request for clemency and for an upgrade of his discharge has been considered based on the documents he submitted. 

2.  However, there is no basis for upgrading the type of discharge that he received.  The documents he submits show he was discharged as a result of a duly reviewed and affirmed special court-martial conviction and he has provided no evidence to show the type of discharge he received was erroneous or unjust.

3.  His contentions were considered; however, post service conduct is not sufficiently mitigating to warrant the requested relief when considering the nature of his offense.  Additionally, the documents that are available show he was reduced in rank on 14 November 1982, which was prior to his special court-martial conviction on 27 October 1983.  While the basis for his reduction is not shown in the documents he submitted it must be presumed the action taken by the Army was correct.

4.  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.  Given the available evidence and absent any additional mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.
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)                                         AR20100000969



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ABCMR Record of Proceedings (cont)                                         AR20100000969



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