BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20100030404 


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 to a general discharge under honorable conditions.

2.  The applicant states he had a prior period of honorable active duty service, the dollar amount of the marijuana involved in his case was only $50.00, it has been 25 years since his discharge, and he has learned from his mistake.

3.  The applicant provides no additional evidence in support of his request.

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 (RA) for a period of 4 years on 6 July 1979.

	a.  Upon completion of training he was awarded military occupational specialty 19E (M-48-M-60A1/A3 Armor Crewman).

	b.  He was assigned overseas to Germany on 16 September 1981.

	c.  He was advanced to specialist four (SP4) on 1 April 1981, reduced to private first class (PFC) on 5 June 1981, advanced to SP4 on 12 March 1982, reduced to PFC on 30 March 1982, and advanced to SP4 on 21 October 1982.

	d.  He was discharged on 28 March 1983 to reenlist in the RA.

3.  The applicant reenlisted in the RA for a period of 3 years on 29 March 1983.

4.  He was promoted to specialist five (SP5) on 20 February 1984.

5.  Headquarters, 1st Cavalry Division, Fort Hood, TX, General Court-Martial Order Number 10, dated 14 May 1985, shows the applicant was tried by a general court-martial in April 1985.

	a.  He pled guilty to and was found guilty of the charge and specification of distribution of 12 grams of marijuana on 4 December 1984.

	b.  On 11 April 1985, he was sentenced to a dishonorable discharge, confinement for 33 months, forfeiture of all pay and allowances, and reduction to private (E-1).

	c.  On 14 May 1985, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, 1 year in confinement, total forfeitures, and reduction to private (E-1) and, except for the part extending to a bad conduct discharge, ordered the sentence executed.

6.  On 30 July 1985 upon consideration of the entire record, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence as approved.

7.  On 20 December 1985, the unexecuted portion of the sentence to confinement for 1 year was remitted.

8.  On 17 January 1986, the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged on 27 January 1986 with a bad conduct discharge as a result of court-martial.  At the time of his discharge he completed 2 years, 1 month, and 16 days of net active service during the period of service under review.

10.  Army Regulation 635-200 (Personnel Separations) 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded because he had a prior period of honorable active duty service, the dollar amount of the marijuana involved in his case was only $50.00, it has been more than 25 years since his discharge, and he has learned from his mistake.

2.  The applicant's contentions regarding his prior period of honorable active duty service and the dollar amount of the marijuana involved in his case were matters for consideration in the sentencing and appeals process of the applicant's case.

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

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.  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.

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 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)                                         AR20100030404



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ABCMR Record of Proceedings (cont)                                         AR20100030404



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