IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100018844 


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 a general discharge.  

2.  He states he:

* was a young man from a small town in Mississippi with big dreams
* made poor choices that resulted in a general court-martial, discharge from the service, and incarceration for a short period of time
* served honorably several years between September 1977 and September 1985 before his wrongdoings 

3.  He also states since being discharged he:
 
* has made a good life for himself and his family despite his past mistakes and the BCD
* had difficulty finding decent employment after he was incarcerated
* trained and worked in the trucking industry 
* has been self-employed and he is able to support his family

4.  He describes himself as:

* an honorable man who is a Christian, a good father and grandfather, and a businessman


* one who does not conduct illegal acts, smoke, drink alcohol, or use profanity
* an individual who would be able to do more to motivate others, including veterans, to rise above their unfortunate circumstances if his discharge is upgraded 

5.  He provides seven character references.  

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 Regular Army on 20 September 1977 at the age of 19.  He was discharged on 25 March 1980 for immediate reenlistment.  

3.  He reenlisted on 26 March 1980 for a period of 6 years.  

4.  Item 27 (Remarks) on his DA Form 2-1 (Personnel Qualification Record – Part II) shows:

	a.  On 25 April 1980, he was arrested by civil authorities in Fayetteville, NC while on an authorized pass.  He was charged with assault with a deadly weapon and released on 11 June 1980 pending trial.

	b.  On 16 June 1980, he was arrested by civil authorities in Cumberland County, NC while on an authorized pass.  He was charged with trespassing on 20 June 1980 and released on bond.

	c.  On 26 March 1981, he was tried, convicted, and sentenced to 12 months probation.  He was sentenced to be assigned to the State Department of Correction, to be fined $468.00, and to remain off the premises of all trailer parks in the city of Fayetteville.

5.  On 13 May 1983, he was convicted pursuant to his guilty pleas by a general court-martial of wrongful possession and wrongful distribution of 20 grams, more or less, of marijuana.  He was sentenced to a reduction to the grade of private, 
E-1, confinement at hard labor for 3 years, a forfeiture of all pay and allowances, and to be discharged from the service with a BCD.  

6.  On 14 June 1983, the court-martial convening authority approved so much of the sentence as provided for a BCD, confinement at hard labor for 13 months, a total forfeiture of all pay and allowances, and reduction to private/E-1.  The forfeitures of pay and allowances became due after the date of the convening authorities action.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review and he was confined in the U.S. Disciplinary Barracks, Fort Leavenworth, KS.  

7.  On 20 October 1983, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On 12 June 1984, the U.S. Court of Military Appeals remanded the case to the U.S. Army Court of Military Review.  

8.  On 19 October 1984, the U.S. Court of Military Appeals set aside and dismissed the finding of guilty of Specification I (wrongful possession of 20 grams, more or less, of marijuana) of the charge.  The remaining finding of guilty and the sentence was affirmed.  

9.  The BCD was ordered to be executed on 22 August 1985.

10.  He was discharged on 10 September 1985 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 3-11, as a result of court-martial.  He completed 4 years, 5 months, and 22 days of creditable active service with 359 days of lost time during the period under review.  

11.  He provided several character references in which he was given many accolades for his dedication to his work, family, friends, and community.  

12.  References:

   a.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD 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.


   b.  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.

   c.  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 trial by court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  The applicant’s statements regarding his post-service conduct and accomplishments are acknowledged.  However, these issues are not sufficiently mitigating to warrant relief in this case.

3.  His service record shows he served honorably from 20 September 1977 through 25 March 1980.  However, his service record shows he was arrested twice and convicted once by civil authorities and he was convicted by a general 
court-martial for wrongful distribution of marijuana during the period under review.   

4.  Based on the seriousness of the misconduct for which he was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting his requested relief.

5.  His character references were also acknowledged; however, these documents are insufficient as a basis to grant the relief requested. 


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
      ___________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)                                         AR20100018844



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ABCMR Record of Proceedings (cont)                                         AR20100018844



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