IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20100001252 


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, in effect, an upgrade of his bad conduct discharge (BCD) to a general discharge.   

2.  The applicant states, in effect, that he made a stupid mistake and believes the continuation of this characterization of his military record to be unjust. 

3.  The applicant does not provide any additional documents 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's record shows that he enlisted in the Regular Army on 15 June 1979.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  The applicant's record shows the highest rank he attained during his tenure of service was sergeant/pay grade E-5.  

3.  On 2 November 1983, the applicant was convicted by a special court-martial (SPCM) of one specification of the wrongful distribution of 26 grams, more or less of marijuana to a Soldier and one specification of having in his possession with the intent to distribute 105.3 grams more or less of marijuana.  He was sentenced to a reduction to pay grade E-1, confinement at hard labor for 
45 days, and a BCD.

4.  The applicant's military personnel records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged on 
18 June 1984 with a BCD as a result of court-martial.  He completed a total of 
4 years, 10 months, and 28 days of military service with 35 days of lost time due to being in confinement.

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge (DD) or BCD.  It stipulates, in pertinent part, that a Soldier will be given a DD or BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

6.  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.

7.  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.


8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention was carefully considered.  However, there is insufficient evidence to support granting the requested relief.

2.  The evidence of record shows no error or injustice related to the applicant’s SPCM conviction and/or his subsequent BCD.  By law, any redress of the finality of a court-martial conviction is prohibited.  A discharge may be changed if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The applicant's overall record of service reveals no acts of valor, significant achievement, or service warranting special recognition.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit 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)                                         AR20100001252



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR