IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100030429 


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 young and the lawyer he had was not the best lawyer to represent him in his case.  He states that the incident involved a discriminatory verbal conversation between him and another party.  There was no assault, no evidence of any injuries, or any medical documentation of abuse. He adds he was the subject of discrimination and he was treated unfairly because of differences in the United States and German justice systems.

3.  The applicant provides no additional documentary 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 on 29 August 1980 for a period of 3 years.  He was 19 years of age at the time.  He completed training and he was awarded military occupational specialty 91C (Patient Care Specialist).

3.  The applicant was assigned to Germany on 30 May 1981.

4.  General Court-Martial Order Number 017, issued by Headquarters,
1st Armored Division, dated 17 February 1983, shows the applicant was tried at a general court-martial on 17 January 1983.

	a.  He pled not guilty to and he was found guilty of the following charges and specifications:

* unlawfully striking an individual on the body with his hands on or about 31 October 1982
* wrongfully possessing 125.5 grams, more or less, of marijuana in the hashish form, with the intent to distribute said controlled substance on or about 31 October 1982

	b.  On 17 January 1983, he was sentenced to reduction to private (PV1)/E-1); total forfeiture of all pay and allowances; confinement at hard labor for 1 year; to pay to the United States a fine of $2,000.00 and to be further confined at hard labor until said fine is so paid, but not for more than 6 months in addition to the
1-year adjudged; and to be discharged from the Army with a bad conduct discharge.

	c.  On 17 February 1983, the convening authority approved the sentence and ordered the applicant be confined in the United States Disciplinary Barracks, Fort Leavenworth, KS, or elsewhere as competent authority may direct.  

5.  On 11 August 1983, upon consideration of the entire record, the U.S. Army Court of Military Review affirmed the findings of guilty and sentence as approved.

6.  On 21 September 1983, the applicant acknowledged receipt of the decision and of his right to petition the U.S. Court of Military Appeals for a grant of review with respect to any matter of law within 60 days.

7.  On 21 September 1983, the unapplied portion of the sentence relating to the fine was remitted.  In addition, the unexecuted portion of the sentence to confinement was suspended until 21 March 1984, at which time, unless sooner vacated, the suspended portion of the approved sentence was to be remitted without further action.

8.  On 8 December 1983, the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

9.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged on 22 December 1983 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, with a bad conduct discharge.  At the time of his discharge he had completed 2 years, 7 months, and 18 days of creditable active service.

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 set forth the basic authority for the separation of enlisted personnel.

	a.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded because he was young, his lawyer was not the best lawyer to represent him in his case, there was a lack of evidence, he was the subject of discrimination, and he was treated unfairly.

2.  The applicant's contentions were matters for consideration in his court-martial and subsequent appeals process of the applicant's case.

3.  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.

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 therefore were 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 requested.

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)                                         AR20100030429



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ABCMR Record of Proceedings (cont)                                         AR20100030429



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