IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100013120 


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 be upgraded to a general discharge under honorable conditions.

2.  The applicant states it has been 27 years since his discharge and he has led an exemplary life as a good citizen.  Drug tests taken before he was hired for jobs show he is not using or taking any drugs.

3.  The applicant provides copies of:

* three personal references
* two employer references
* a Georgia Work Ready Certificate
* 21 pages from his military personnel records jacket
* a police record check from St. Mary's Police Department, St. Mary's, GA, indicating no record
* 12 forms requesting drug screening tests
* seven drug screening test results showing he tested negative for drugs

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 personnel records show he enlisted in the Regular Army on 10 December 1980 for a period of 6 years.  He had previously served honorably in the Army for 3 years, 1 month, and 9 days.  He was awarded the military occupational specialty of 12E (Atomic Demolition Munitions Specialist).  On 12 April 1982, he was assigned to the 557th U.S. Army Artillery Group in Germany.

3.  On 3 February 1982, the applicant was promoted to sergeant/pay grade E-5.

4.  On 26 April 1983, the applicant pled guilty and was found guilty before a special court-martial of:

* wrongful possession of marijuana in the hashish form
* wrongful use of marijuana in the hashish form
* wrongful distribution of marijuana in the hashish form
* wrongful possession of drug abuse paraphernalia

5.  His sentence consisted of reduction to pay grade E-1, forfeiture of $382.00 pay per month for 6 months, confinement at hard labor for 6 months, and discharge from the service with a bad conduct discharge.

6.  On 8 June 1983, the convening authority approved the sentence, but the execution of that portion thereof adjudging confinement at hard labor in excess of 3 months was suspended for 6 months at which time, unless the suspension was sooner vacated, the suspended portion should be remitted without further action.

7.  The applicant asserted the illegal actions of the convening authority pervaded his case and affected every stage of the proceedings.  On 9 August 1984, the U.S. Army Court of Military Review considered the applicant's assignment of error and his challenge to the factual predicate for his plea of guilty and found them to be without merit.  The findings of guilty and the sentence were affirmed.

8.  On 25 September 1986, the U.S. Court of Military Appeals set aside the decision of the U.S. Army Court of Military Review stating, "There remains a question as to the validity of the review and action taken by the convening authority."  The U.S. Army Court of Military Review set aside the action of the convening authority and returned the record of trial for a new review and action by a different convening authority.

9.  On an unknown date, a new action by a new convening authority found the applicant guilty, apparently of the same offenses he was originally charged with, and the new convening authority approved a sentence of reduction to E-1,          3 months confinement, forfeiture of $382 pay per month for  months, and a bad conduct discharge.

10.  On 10 April 1987, following the new action, the U.S. Army Court of Military Review considered the issues personally asserted by the applicant and found them to be without merit.  On consideration of the entire record, the U.S. Army Court of Military Review was "persuaded beyond a reasonable doubt" that unlawful command influence did not prejudice the applicant at any stage of the judicial process.  The findings of guilty and the sentence were affirmed.

11.  On 23 July 1987, the applicant's bad conduct discharge was ordered to be executed.

12.  On 3 August 1987, the applicant was separated with a bad conduct discharge as a result of his court-martial conviction.  He completed 6 years, 6 months, and 22 days of net active service.  He had 63 days of lost time.

13.  The personal references attest to the applicant being an individual who "does not shy away from responsibility, but takes it (and volunteers for it) and does it well."

14.  One employer reference, dated 13 February 1990, shows he was employed with that company for 4 months and was employed at that time.  A second employer reference, dated 14 January 2010, indicates he has been employed in the electrical trade for at least 4 years and continues to gain knowledge and experience in that field.

15.  The records check from the St. Mary's Police Department indicates the applicant has no record with that department.  The seven results from drug screening tests show the applicant tested negative for drug abuse on seven different occasions during the period 18 December 1999 to 29 April 2009.

16.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 13 November 1992, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined the applicant's discharge was proper and equitable.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

18.  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.

19.  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 requests that his bad conduct discharge be upgraded to a general discharge under honorable conditions.

2.  The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  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.

4.  The applicant had been promoted to sergeant, a position of authority and responsibility.  In promoting the applicant to sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a sergeant, the applicant was in a position of trust and responsibility and he was responsible for the welfare of those assigned under him.  When he became involved with the possession, use, and distribution of marijuana in the hashish form, he not only broke the law, he also violated this special trust and confidence.  Therefore, in view of the applicant's abuse of a position of trust his service was unsatisfactory.

5.  The applicant's post-service achievements and conduct are noted and the letters submitted by the applicant were reviewed.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge.

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to a general discharge under honorable conditions.

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 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)                                         AR20100013120



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ABCMR Record of Proceedings (cont)                                         AR20100013120



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