IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100023704 


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, in effect, that his bad conduct discharge be upgraded.

2.  The applicant states he was young and did not receive proper defense at the time of his discharge.  His lawyer did not speak on his behalf.  He was never in trouble before this incident.  He knows he was wrong, but it was only one incident in his career so he thinks his sentence was too severe when others received a slap on the hand.  He wanted to serve for 20 or more years.  He thinks his discharge was unfair because it was a minor offense, but they wanted to make an example of him.  He has been a model person in every sense.

3.  The applicant provides no additional evidence.

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 25 August 1954.  He enlisted in the Regular Army on 26 August 1974 at 20 years of age.  He completed his initial entry training and was awarded military occupational specialty 94B (Food Service Specialist).  He was honorably discharged on 25 May 1977 for the purpose of immediate enlistment on 26 May 1977.

3.  With no prior disciplinary history of nonjudicial punishment, the applicant was convicted by a special court-martial on 27 July 1981 for:

* one specification of wrongfully selling marijuana on 9 April 1981
* one specification of wrongfully transferring marijuana on 16 April 1981

4.  He was sentenced to reduction to private/pay grade E-1, confinement at hard labor for 2 months, and a bad conduct discharge.

5.  On 23 September 1981, the convening authority approved the sentence.

6.  On 23 December 1981, the U.S. Army Court of Military Review affirmed the applicant's findings of guilty and his sentence.

7.  After completion of the portion of his sentence consisting of confinement at hard labor, Special Court-Martial Order Number 245 issued by the U.S. Disciplinary Barracks on 4 May 1982 directed the execution of the applicant's sentence consisting of his bad conduct discharge.

8.  On 28 May 1982, he was discharged accordingly.  His net active service for this period was 4 years, 10 months, and 23 days and he was credited with 255 days of excess leave.

9.  References:

	a.  Army Regulation 635-200 (Personnel 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.  It 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.

	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 3-7a, 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.

	d.  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 records are 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's contention that his youth contributed to his transferring and selling marijuana is not accepted.  The applicant was over 26 years of age at the time of his conviction.  Further, he has not provided evidence to support his contention that his defense counsel did not speak on his behalf.

2.  The evidence of record 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 law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  Court-martial convictions and sentences are unique to each offender and are based on the independent and individualized circumstances of the case.

3.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support his request to upgrade his discharge.

4.  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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20100023704



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ABCMR Record of Proceedings (cont)                                         AR20100023704



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