IN THE CASE OF:	  

		BOARD DATE:	    17 May 2011

		DOCKET NUMBER:  AR20100026310


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 (BCD).

2.  The applicant states he was discharged in 1983 and he has lived with a BCD for 28 years.  He believes that fact alone warrants an upgrade, but in any case, the discharge was too harsh.  He also states he was under the impression his discharge would be automatically upgraded.

3.  The applicant provides a 2-page submission.

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.  With 21 days in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP), the applicant enlisted in the Regular Army on 18 June 1981 for a period of for 3 years.

3.  General Court-Martial Order Number 19, issued by Headquarters, U.S. Army Signal Center, Fort Gordon, GA, dated 3 June 1982, shows he was found guilty of violation of:

* Article 128, Uniform Code of Military Justice (UCMJ) for unlawfully assaulting a Special Agent on or about 30 January 1982
* Article 134, UCMJ, for on or about 30 January 1982, wrongfully having in his possession, with intent to sell, approximately 50 grams, more or less, of marijuana
* Article 134, UCMJ, for on or about 30 January 1982, wrongfully sell marijuana

4.  His sentence was adjudged on 29 March 1982, consisting of a BCD, confinement at hard labor for 1 year, forfeiture of all pay and allowances, and reduction to the grade of E-1.  He served his confinement from 29 March through 30 November 1982.  He was released from confinement and sent home in an excess leave without pay status on 1 December 1982 to await appellate action on his court-martial conviction.

5.  General Court-Martial Order Number 70, issued by Headquarters, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, dated 28 January 1983, affirmed the applicant's sentence.  Pursuant to General Court-Martial Order Number 432, issued by Headquarters, U.S. Army Combined Arms Center, Fort Leavenworth, dated 5 November 1982, the unexecuted portion of the sentence to confinement was remitted, effective 1 December 1982.  The BCD was ordered executed.  He was so discharged on 17 February 1983.

6.  The applicant's DD Form 214 shows in:

* Item 23 (Type of Separation) the entry, "DISCHARGE"
* Item 24 (Character of Service) the entry, "BAD CONDUCT"
* Item 25 (Separation Authority) the entry, "Para 11-2, AR [Army Regulation] 635-200"
* Item 26 (Separation Code) the entry, "JJD"
* Item 27 (Reentry Code) the entry, "4"
* Item 28 (Narrative reason for Separation) the entry "As a result of Court-Martial, other"

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, of the regulation then in effect, provided that a Soldier would be given a BCD pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must have been completed and the affirmed sentence ordered duly executed.

7.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) 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.

	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was apprehended, charged, and convicted of drug offenses involving the possession and sale of marijuana.  He was also charged with assaulting a Special Agent.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  The applicant's BCD is not overly harsh.

2.  The applicant’s assertion he should not be made to suffer the consequences of a BCD for the rest of his life was considered and found to lack merit.  All 
actions have consequences, and some consequences are permanent.  The applicant's criminal activity resulted in a felony conviction and a BCD.  He has not provided evidence sufficient to warrant an upgrade of his discharge as a matter of equity.

3.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges or upgrade discharges based on the passage of time.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

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 therefore were 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 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)                                         AR20100026310



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ABCMR Record of Proceedings (cont)                                         AR20100026310



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