IN THE CASE OF:	  

		BOARD DATE:	   17 May 2011

		DOCKET NUMBER:  AR20100024937 


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 upgrade of his bad conduct discharge to an honorable discharge.

2.  The applicant states he was told by his sergeant that his discharge would be changed to honorable.  He served all his time and was just trying to take care of his family.  He has no criminal record or financial debt.  He has been a model citizen serving his community as a security officer protecting his neighbors.  Further, he utilized his military training to benefit his community and improve his life.  He has matured over the years and is remorseful for his wrong doings.

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 enlisted in the Regular Army on 8 October 1980.  He completed his initial training and he was awarded military occupational specialty 13B (Cannon Crewman).  

3.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record - Part II) shows 47 days of lost time due to imprisonment.

4.  His record shows he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three separate occasions.  His offenses included failure to go at the time prescribed to his appointed place of duty, willful damage of military property, and disobeying lawful orders from a noncommissioned officer.

5.  Special Court-Martial Order Number 76, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, dated 9 September 1983, shows he pled guilty and was found guilty of:

* One specification of wrongful possession of 7.3 grams, more or less, of marijuana, with the intent to distribute (dismissed by military judge after findngs)
* One specification of wrongful distribution of 7.3 grams, more or less, of marijuana

6.  His sentence included reduction to private/E-1, forfeiture of $350.00 pay per month for 2 months, confinement at hard labor for 2 months, and a bad conduct discharge.

7.  Special Court-Martial Orders Number 5, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, dated 20 January 1984, show his sentence was affirmed and Article 71(c) having been complied with, ordered the bad conduct discharge be executed.  The portion of the sentence pertaining to confinement was served.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a bad conduct discharge on 27 January 1984 in accordance with Special Court-Martial Orders Number 5, dated 20 January 1984, as a result of court-martial.  He completed 3 years, 2 months, and 3 days of total active service with 47 days of time lost due to confinement.

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 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.  The evidence of record shows the applicant had a pattern of misconduct which included three instances of nonjudicial punishment and a conviction for distribution of marijuana; therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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.  

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

4.  In view of the foregoing, his request should be denied.

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)                                         AR20100024937





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ABCMR Record of Proceedings (cont)                                         AR20100024937



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