IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110004565 


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.  He states he would like his discharge upgraded.

3.  He 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.  His military record shows he enlisted in the Regular Army in pay grade E-1 on 5 October 1982.  He completed training and was awarded military occupational specialty 76V (Materiel Storage & Handling Specialist).  He was advanced to pay grade E-3 on 1 July 1983.

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for the following:

* on 11 January 1984 for being disrespectful in language towards his superior noncommissioned officer
* on 8 July 1985 for failing to go to his appointed place of duty on 20 June 1985

4.  On 19 February 1985, he received counseling for a positive urinalysis, bar to reenlistment, continued drug abuse and possible elimination from the military service, and receipt of a general discharge.

5.  On 25 February 1985, a bar to reenlistment was initiated against him.  The bar was approved on 27 February 1985.

6.  On 6 January 1986, he was convicted by a general court-martial of one specification each of the following:

* wrongfully distributing 106.25 grams of marijuana on 5 August 1985
* wrongfully distributing 6.54 grams of marijuana on 16 August 1985

7.  He was sentenced to confinement for 5 years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a bad conduct discharge.

8.  On 30 January 1986, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 4 years, and forfeiture of all pay and allowances.

9.  On 28 February 1986, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

10.  On 13 March 1986, he petitioned the U.S. Court of Military Appeals.  His petition for review was denied on 9 April 1986.

11.  General Court-Martial Order Number 137, dated 28 April 1986, stated the sentence to a bad conduct discharge, forfeiture of all pay and allowances, and confinement for 4 years were finally affirmed and the bad conduct discharge was ordered duly executed.

12.  He was discharged from active duty in pay grade E-1 on 6 June 1986 as a result of a court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-11, and issued a bad conduct discharge.  He was credited with completing 3 years, 3 months, and 1 day of net active service.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

14.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge was a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, states 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.

16.  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 evidence of record shows the applicant was twice punished under Article 15, barred from reenlistment, and convicted by a general court-martial of two specifications of wrongful distribution of marijuana.

2.  On 6 June 1986, he was discharged pursuant to the sentence of a general court-martial with a bad conduct discharge.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

4.  He provided no evidence to show his discharge is unjust.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general or honorable discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.

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 his offenses and absent any mitigating factors, the type of discharge directed and the reasons 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 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)                                         AR20110004565



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ABCMR Record of Proceedings (cont)                                         AR20110004565



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