IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110000229 


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 his bad conduct discharge be upgraded to honorable.

2.  The applicant states he served his country faithfully and received an honorable discharge for his initial period of service.  He feels that he has lived with a bad conduct discharge over his head for more than 30 years and that is long enough to have his discharge upgraded.  In addition, he wants his record made clean and to qualify for all the benefits he does not have now.

3.  The applicant provides no additional evidence.

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 6 February 1973 and he was honorably discharged on 20 December 1976.  He immediately reenlisted on 
21 December 1979.  The highest rank and grade attained was sergeant 
(SGT/E-5).  

3.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record - Part II) shows he was confined from 1 June 1978 to 10 December 1978.

4.  General Court-Martial Order Number 44, issued by Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, dated 12 July 1978, shows he pled not guilty to the charge of violation of the Uniform Code of Military Justice (UCMJ), Article 134 and the following specifications:

* Wrongful possession of marijuana
* Wrongful transfer of marijuana to Private HLM
* Wrongfully selling marijuana to Private HLM
   
5.  The court found him guilty of all the specifications of the charge.  He was sentenced to a forfeiture of all pay and allowances, to be confined at hard labor for one year, and to be discharged from the service with a bad conduct discharge.

6.  Convening authority suspended forfeitures in excess of $120.00 pay per month on 5 October 1978 remaining confinement remitted on 11 December 1978.  The U.S. Army Court of Military Review affirmed the sentence.  The U.S. Court of Military Appeals denied petition for review on 6 April 1979.

7.  General Court-Martial Order Number 17, issued by Headquarters, XVII Airborne Corps, Fort Bragg, NC, dated 3 May 1979, shows his sentence was affirmed and Article 71(c) having been complied with, ordered the bad conduct discharge be executed.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a bad conduct discharge on 11 May 1979 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of court-martial.  He completed 5 years, 
8 months, and 26 days of total active service with 190 days of time lost due to confinement.

9.  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.

10.  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 evidence of record shows the applicant committed serious misconduct which included the wrongful possession, transfer, and sale of marijuana; therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel; therefore his request should be denied.

2.  The evidence of record shows his trial by a general court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  His honorable period of service is noted; however, neither the passage of time nor his post service achievements warrant an upgrade of his bad conduct discharge.  The record can only be corrected if the discharge was found to be in error or unjust.  Lacking evidence of either, the type of discharge directed and the reasons were appropriate.

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.  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)                                         AR20110000229





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ABCMR Record of Proceedings (cont)                                         AR20110000229



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