IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20100030244 


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, his bad conduct discharge be upgraded.

2.  The applicant states that he would like to apologize for his behavior during his time in the military.  He contends he was a shy, immature, lonely young man who got mixed up with the wrong person and broke the law.  However, he accepts full responsibility for his actions and is deeply ashamed.  He has a lovely family, is a Sunday School teacher, attends college at night, and works hard during the day.  He would like to be forgiven for his crime and have his discharge upgraded.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Grade Report from Coker College, dated 28 April 2010
* 5 Letters of support 

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.  On 10 June 1980, the applicant, at almost 17 years and 9 months of age, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 75B (Personnel Administrative Specialist).  

3.  On 19 November 1982, at a special court-martial, the applicant entered mixed pleas to the violation of Article 134 and the following 9 specifications:

	a.  Specification 1, wrongful possession of 2.23 grams, more or less of marijuana in the hashish form on 28 June 1982;

	b.  Specification 2, wrongful sale of 2.23 grams, more or less of marijuana in the hashish form on 28 June 1982;

	c.  Specification 3, wrongful transfer of 2.23 grams, more or less, of marijuana in the hashish form on 28 June 1982;

	d.  Specification 4, wrongful possession of 2.8 grams, more or less of marijuana in the hashish form on 12 July 1982;

	e.  Specification 5, wrongful sale of 2.8 grams, more or less of marijuana in the hashish form on 12 July 1982; 

	f.  Specification 6, wrongful transfer of 2.8 grams, more or less, of marijuana in the hashish form on 12 July 1982;

	g.  Specification 7, wrongful possession of 8.1 grams, more or less of marijuana in the hashish form on 16 July 1982;

	h.  Specification 8, wrongful sale of 8.1 grams, more or less of marijuana in the hashish form on 16 July 1982; and

	i.  Specification 9, wrongful transfer of 8.1 grams, more or less, of marijuana in the hashish form on 16 July 1982.

4.  He pled guilty to specifications 1, 3, 4, 6, 7, and 9; not guilty to specifications
2, 5, and 8 which alleged sale of contraband; and guilty to the charge.  He was found guilty of all charges and specifications.

5.  The Military Judge sentenced the applicant to a bad conduct discharge; to confinement at hard labor for 95 days; to a forfeiture of $382.00 pay per month for 3 months; and to be reduced to the lowest grade of private (E-1).  No previous convictions were considered.  The convening authority approved the sentence, except he reduced the forfeitures to $367.00 pay per month for three months.

6.  Effective 15 December 1982, he was placed into an involuntary excess leave status, without pay and allowances and Special Court-Martial Order Number 643, United States Army Correctional Activity, remitted the unexecuted part of his sentence to confinement at hard labor.

7.  On 8 July 1983, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  The convening authority ordered the BCD executed.  The applicant was accordingly discharged on 14 November 1983.

8.  There is no indication that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

9.  The applicant submits 5 letters of support which summarily state he has turned his life around.  He is a law-abiding citizen and an active member in his church who is always willing to help others.  

10.  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.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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 applicant contends his bad conduct discharge should be upgraded because he was young and made mistakes for which he is remorseful.

2.  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 final discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  Based on the applicant's misconduct, his service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.

4.  The applicant’s post-service training and achievements, as well as his letters of support, have been considered.  However, these achievements do not sufficiently mitigate his criminal acts committed during his military service.

5.  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.

6.  In view of the above, there is no basis for granting the applicant's requested relief.

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)                                         AR20100030244





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ABCMR Record of Proceedings (cont)                                         AR20100030244



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