BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20100025489 


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.

2.  The applicant states he was a good Soldier until the incident that led to his discharge and the penalty imposed was too harsh.  He adds that he is in need of medical benefits.

3.  The applicant provides:

* two letters of support
* a Miami-Dade County, Florida, Criminal Justice and Civil Infractions Cases - Defendants List
* three Miami-Dade County, Florida, Criminal Justice and Civil Infractions Cases - Case List
* eighteen Miami-Dade County, Florida, Criminal Justice and Civil Infractions Cases - Case Information

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 5 October 1977 for a period of 4 years.  Upon completion of training he was awarded military occupational specialty 13B (Cannon Crewman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) that the highest rank/grade he attained was private first class (PFC)/E-3 on 1 August 1978.

4.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on three occasions, as follows:

	a.  on 12 February 1979, for willfully disobeying a lawful order from a noncommissioned officer (NCO);

	b.  on 11 June 1980, for willfully disobeying a lawful order from an NCO and for failing to go at the time prescribed to his appointed place of duty; and

	c.  on 29 December 1980, for failing to go at the time prescribed to his appointed place of duty and willfully disobeying a lawful order from an NCO.

5.  The applicant was tried by a special court-martial in April 1981.  He was found guilty of:

	a.  four specifications of wrongfully possessing some amount of marijuana;

	b.  three specifications of wrongfully selling some amount of marijuana; and

	c.  one specification of wrongfully possessing some amount of a habit forming narcotic drug (cocaine).

6.  On 2 April 1981, he was sentenced to confinement at hard labor for 3 months, forfeiture of $334.00 pay per month for 6 months, reduction to pay grade E-1, and a bad conduct discharge.


7.  On 4 June 1981, the convening authority approved the sentence, ordered the applicant's confinement in the U.S. Army Area Confinement Facility, Fort Richardson, AK, and directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

8.  Headquarters, 172nd Infantry Brigade, Fort Richardson, Special Court-Martial Order Number 25, dated 8 December 1981, confirmed that in the special court-martial case of the applicant, the sentence was affirmed.  The provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 16 December 1981 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of court-martial (other), with issuance of a bad conduct discharge.

	a.  He had completed 2 years, 10 months, and 19 days of creditable active service.

	b.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the Army Service Ribbon.

	c.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 25 September through 26 September 1978 and from 2 April through 20 July 1981.

10.  In support of his request, the applicant provides:

   a.  A letter of support from his brother, D--- L. D---, dated 4 April 2010.  He states the applicant was a good brother.  He enlisted in the Army, and 1 year later married the love of his life; however, the applicant grew distant from his wife and family.  The applicant told him that he was drinking, and selling and using drugs; he was court-martialed; and the applicant expressed to him that the Army had "done him wrong."  Afterwards, life got worse for the applicant and he became mad at the world.  He couldn't hold a job and his marriage fell apart.  He continued to use drugs, turned to a life of crime to support his drug habit, and he was incarcerated in May 1995.  After nearly 4 years, he was released from prison.  At this point, the applicant began to turn his life around and this is the basis for an upgrade of his discharge.

   b.  A letter, dated 7 December 2009, from the applicant's oldest brother, who is a physician.  He states the applicant is a good guy despite what his personal 


history shows.  They were raised in a ghetto community; however, the applicant never surrendered to the bad influences around him.  Being a veteran of the U.S. Navy, he advised the applicant to join the military.  The applicant joined the Army, became addicted to drugs, and he was discharged for his involvement with the drug culture that he was exposed to in the military.  He adds the emphasis in the military in the post-Vietnam era was to "weed out those Soldiers addicted to drugs rather than to rehabilitate them."  He notes that the applicant recently recovered from his drug addiction and he requests the Board consider upgrading the applicant's discharge.

	c.  Clerk of the Courts, Miami-Dade, Florida, Criminal Justice and Civil Infraction Cases - Defendants List, Case List, and Case Information webpage printouts that show charges filed against the applicant and their disposition during the period 8 May 1987 through 15 June 2006.

11.  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.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 11 (Dishonorable and Bad Conduct Discharge), paragraph 11-2, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a special or general court-martial, after completion of the appellate review and after such affirmed sentence has been ordered duly executed.

   b.  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 bad conduct discharge should be upgraded because he was a good Soldier before he developed a drug habit and he was court-martialed, his punishment was too harsh, he is now a law-abiding citizen, and he is in need of medical benefits.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

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.  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.  The applicant's recent post-service conduct was considered; however, it is not sufficiently mitigating to warrant relief.  Additionally, the Board does not upgrade discharges so that applicants can qualify for benefits provided by the Department of Veterans Affairs.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100025489



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ABCMR Record of Proceedings (cont)                                         AR20100025489



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