IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100014276 


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 an upgrade of his bad conduct discharge to a general discharge. 

2.  The applicant states he is experiencing medical problems that resulted from his military service and he desires to be eligible for Department of Veterans Affairs (VA) benefits.  The circumstances that contributed to his discharge are no longer an issue.  He was young at the time and there was a lot of peer pressure. He was afraid if he did not do what others asked of him he would not fit in or be accepted and/or respected.  His misconduct was an isolated incident, and at the time of discharge he was not offered any other option or counseling.  He was told he had to be discharged with no options. 

3.  The applicant provides the following documents:

* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) and allied documents
* Honorable Discharge Certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 records show he was born on 7 September 1958 and enlisted in the Regular Army at 19 years of age on 13 September 1977.  He held military occupational specialty 13B (Cannon Crewman).  He served through a reenlistment and attained the rank/grade of specialist four/E-4.  

3.  His records also show he served in Germany from 27 June 1979 to 21 July 1981.  He was awarded the Good Conduct Medal, Expert Marksmanship Qualification Badge with Rifle Bar, and 1st Class Gunner Marksmanship Qualification Badge with Grenade Bar.

4.  On 22 July 1981, he pled guilty at a special court-martial to one specification of wrongfully possessing marijuana and one specification of wrongfully transferring marijuana, on or about 22 May 1981.  He also pled not guilty to one specification of wrongfully selling marijuana, on or about 22 May 1981.  The court found him guilty of all specifications and charges and sentenced him to a reduction to private/E-1, a forfeiture of $334.00 pay for 4 months, confinement at hard labor for 4 months, and a bad conduct discharge.  

5.  On 17 September 1981, the convening authority approved the sentence and except for that part of the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 30 November 1981, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, Special General Court-Martial Order Number 283, dated 17 May 1982, shows that after completion of all required post-trial and appellate reviews and after a deferral of the sentence to confinement, the convening authority ordered the bad conduct discharge executed. 

8.  The applicant was discharged from the Army on 15 June 1982.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations), as a result of court-martial.  This form further shows his character of service as bad conduct.  He completed 4 years, 6 months, and 11 days of creditable military service and he had 53 days of lost time.

9.  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.

10.  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 contends that his discharge should be upgraded.

2.  The evidence of record shows his trial by a special court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The evidence of record shows the applicant was 19 years of age at the time of his enlistment and nearly 21 years of age at the time he committed his offenses.  However, there is no evidence that shows his misconduct was a result of his age or that he was any less mature than other Soldiers who successfully completed their term of service. 

4.  There is no evidence in his records and he did not provide any evidence that shows he was not counseled or afforded proper legal advice throughout the court-martial. 

5.  There is no evidence in the available records nor did the applicant provide any documentation to warrant an upgrade of his discharge.  Based on his overall record, his service does not meet the standards of acceptable conduct and performance for Army personnel.  Therefore, he is not entitled to the requested relief.

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)                                         AR20100014276



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100014276



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1