IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100010523 


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 upgrade of his bad conduct discharge.

2.  The applicant states:

* Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad conduct discharge
* His average conduct and efficiency ratings/behavior and proficiency marks were good
* His record of promotions showed he was generally a good service member
* He had a prior Honorable Discharge
* His ability to serve was impaired by his marital and family problems, youth and immaturity, and his drug use
* His record of court-martial conviction indicates only minor offenses
* The punishment he received was too harsh

3.  In an undated letter, the applicant states:

* His discharge is improper and/or inequitable and should be recharacterized to honorable or general under the "Whole Man Concept"
* The "Laird Memo" and its 1972 supplement require review of undesirable discharges, bad conduct discharges, and dishonorable discharges issued for personal abuse of drugs and authorize general discharges
* Honorable discharges are permitted by the "Laird Memo" and as general rules are granted when the service record would have led to honorable discharges except for drug involvement
* When considering his discharge upgrade he asked the Board to keep in mind six drug related cases wherein discharges had been previously upgraded
* His discharge is improper and/or inequitable and should be recharacterized to honorable or general because the offense that led to discharge was an isolated offense not characteristic of his overall quality of service
* Post service conduct can be given significant weight  

4.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Certificates of Appreciation, Recognition, Achievement
* Character reference letters
* DA Form 2-2 (Record of Court-Martial Conviction)
* DA Form 2-1 (Personnel Qualification Record)
* Enlistment contract
* Packard and Laird Memoranda

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 was born on 7 January 1960.  He enlisted in the Regular Army on 9 June 1978 for a period of 3 years.  He successfully completed basic and advanced individual training and was awarded military occupational specialty 


67V (observation scout helicopter repairer).  He was promoted to specialist four on 1 December 1979.  He was honorably discharged on 7 June 1981 for reenlistment.  He reenlisted on 8 June 1981 for a period of 3 years.  

3.  On 13 March 1985, a bar to reenlistment was imposed against the applicant.

4.  On 9 April 1985, the applicant was convicted by a special court-martial of distributing marijuana.  He was sentenced to be reduced to pay grade E-1, to be confined for 3 months, to forfeit $400 pay per month for 3 months, and to be discharged from the service with a bad conduct discharge.  On 3 July 1985, the convening authority approved the sentence.

5.  On 30 September 1985, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 17 January 1986, the convening authority ordered the bad conduct discharge to be executed.

7.  Accordingly, the applicant was discharged with a bad conduct discharge on 14 February 1986 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 7 years, 5 months, and 24 days of creditable active service with 72 days of lost time due to confinement.

8.  On 26 March 1999, the Army Discharge Review Board denied the applicant's request for a general discharge.

9.  The applicant provided the Packard Memorandum, dated 7 July 1971, which pertained to rehabilitation of drug abusers.  He provided the Laird Memorandum, dated 13 August 1971, which pertained to review of discharges under other than honorable conditions issued to drug users.  This policy applied to those service members whose cases were finalized or in process on or before 7 July 1971.  The applicant also provided the Laird Memorandum, dated 28 April 1972, which pertained to review of punitive discharges issued to drug users.  This policy is applicable only to discharges which had been executed on or before 7 July 1971 or issued as a result of a case in process on or before 7 July 1971.  

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 states that a Soldier will 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 affirmed sentence ordered duly executed.

11.  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.  

12.  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.

13.  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 contends his ability to serve was impaired by his marital and personal problems.  However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his alleged problems within established Army procedures.
   
2.  The applicant contends his ability to serve was impaired by youth and immaturity.  However, age is not a sufficiently mitigating factor.  The applicant was 18 years old when he enlisted and he successfully completed training.  In addition, he served 4 and 1/2 years prior to his misconduct.     

3.  The applicant contends his court-martial conviction indicates only minor offenses.  However, drug distribution is not a minor offense.

4.  Good post service conduct alone is normally not a basis for upgrading a discharge.

5.  The applicant's request that the Board keep in mind six drug related cases wherein discharges had been previously upgraded was noted.  However, the ABCMR reviews each case individually and as presented before the Board based on its own merit and evidence presented.  There are no cases that set the standards on how the Board should vote.

6.  The policies of the Laird memoranda provided by the applicant only apply to those service members whose cases were finalized or in process on or before 
7 July 1971.  The applicant's offense occurred in 1985.  He was discharged in 1986.  Additionally, those memos would not have applied to his case even if it had arisen during the relevant period.  The Packard memorandum related to application of what is now known as the "limited use" policy involving adverse actions for drug use based on a positive urinalysis result.  The Laird memos related to drug cases involving only personal use or possession for personal use.  The applicant's misconduct which led to his conviction did not involve a urinalysis and was for distribution, not use, of drugs. 

7.  Trial by court-martial was warranted by the gravity of the offense 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.

8.  The applicant's entire record of service, including his promotions and prior Honorable Discharge, were carefully considered.  However, his record of service during his last enlistment included a bar to reenlistment, one special court-martial conviction for distributing marijuana, and 72 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgraded discharge.

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)                                         AR20100010523





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100010523



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1