IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100011609 


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 that his Bad Conduct Discharge (BCD) be upgraded to an honorable discharge.

2.  The applicant states that he faithfully served his country for 3 ½ years and extended his enlistment in order to make a permanent change of station (PCS) with his unit from Fort Bragg, North Carolina to Fort Gordon, Georgia.  He further states that when he was within 1 month of either reenlisting or getting out of the Army he was approached by Criminal Investigation Division (CID) agents and accused of selling drugs to an undercover agent.  He was court-martialed and sentenced to serve 6 months at Leavenworth.  He states he was a young man guilty only of using marijuana, no marijuana was found on him or in his room.  He also states he told CID agents he had not sold marijuana to anyone.  He pled guilty because he was afraid and he did not trust his counsel at the time.

3.  The applicant provides a three-page letter explaining 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 United States Army Reserve under the delayed entry program (DEP) on 7 May 1976 for a period of 6 years.  On 18 May 1976, he enlisted in the Regular Army for a period of 3 years, training as a telecommunications specialist, and assignment to Fort Bragg.

3.  He completed his basic training at Fort Knox and his advanced individual training at Fort Gordon before being transferred to Fort Bragg on 8 November 1976.

4.  On 7 September 1978, while serving in the pay grade of E-3, the applicant extended his enlistment for a period of 5 months in order to meet the service remaining requirement for a permanent change of station movement with his unit.

5.  He transferred with his unit to Fort Gordon on 2 October 1978 and he was advanced to the pay grade of E-4 on 19 December 1978.  

6.  On 16 May and 2 August 1979, nonjudicial punishment was imposed against him for failure to go to his place of duty.

7.  On 15 November 1979, he was convicted, pursuant to his pleas, by a general court-martial of selling phencyclidine (PCP), possession of PCP, and possession of marijuana.  He was sentenced to confinement at hard labor for 6 months, total forfeitures, a reduction to pay grade E-1, and a BCD.

8.  On 30 January 1980, the United States Army Court of Military Review affirmed the findings and sentence approved by the convening authority.

9.  On 29 May 1980, the applicant was discharged while on excess leave pursuant to a duly reviewed and affirmed court-martial conviction.  He was issued a BCD.

10.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.    

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense.  Accordingly, his service does not rise to the level of a discharge under honorable conditions.   

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)                                         AR20100011609



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ABCMR Record of Proceedings (cont)                                         AR20100011609



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