IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20110021800 


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 that his bad conduct discharge be upgraded to honorable and the narrative reason for separation be changed to expiration term of service (ETS).

2.  The applicant makes the following statements:

	a.  He was convicted of two counts of possessing 1.4 grams or less of hashish.  Two other counts were set aside.  None of the offenses were cognizable in a U.S. Court.  He contends that at the time he was very immature and naïve.  His first indication of the seriousness of his actions was impressed upon him by the 6 months of incarceration.

	b.  In 1984, the culture of the Army where he was stationed was radically different from the present.  There was a widely-held belief that a court-martial for charges such as his was not serious and would not result in permanent negative consequences.  His belief, which was reinforced by the noncommissioned officers in his unit, was that his bad conduct discharge would be upgraded to a general discharge.

	c.  Since his discharge, he has never been involved with drugs or charges related to drugs.  The penalties and consequences of a bad conduct discharge have escalated over the years.  Twenty-five years after his discharge he is still facing the full continuing burden of this discharge.  Instead of his misconduct resulting in a defined and proportionate punishment he has been permanently classified by the discharge and slandered by the nature of the charge.
	d.  The attitude towards his offenses has changed in this country.  In many cases the charge is only a misdemeanor.  The substance of the charge against him involved a material and an amount that in today’s medically-prescribed, decriminalized marijuana-hashish country is at least ambiguous as to the seriousness.

	e.  The continued existence of the bad conduct discharge and its resultant denial of benefits constitutes a disproportionate punishment for a non-serious offense.  He looks forward to the Board's understanding and compassion in reaching its decision.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Special Court-Martial Order Number 36, 8th Infantry Division, dated 26 September 1984
* Special Court-Martial Order Number 493, Fort Riley, Kansas, dated 21 December 1984
* Memorandum Opinion, U.S. Army Court of Military Review (USACMR), dated 18 July 1985
* Special Court-Martial Order Number 7, Fort Riley, Kansas, dated 6 January 1986
* five letters of support from four family members and one friend

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 9 September 1982, the applicant, at the age of 20 years and 10 months, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11C (Indirect fire Infantryman).

3.  On 31 December 1982, the applicant was assigned to 2nd Battalion, 68th Armor Regiment, in the Federal Republic of Germany.

4.  Special Court-Martial Order Number 36, Headquarters, 8th Infantry Division, dated 26 September 1984 shows:

	a.  The applicant was convicted of violating Article 134 of the Uniform Code of Military Justice (UCMJ) for:

* specification 1 – on 17 April 1984, for possession of 1.4 grams of marijuana in the hashish form
* specification 2 – on 17 April 1984, for wrongful distribution of 1.4 grams of marijuana in the hashish form
* specification 3 – on 18 April 1984, for possession of 3.5 grams of marijuana in the hashish form
* specification 4 – on 18 April 1984, for wrongful distribution of 3.5 grams of marijuana in the hashish form

	b.  All four specifications were for offenses that occurred outside of the United States.  As such, they were not cognizable in a U.S. civilian court.

	c.  The sentence, adjudged on 25 July 1984, included:

* a forfeiture of $300.00 pay for 6 months
* confinement for 6 months
* bad conduct discharge

	d.  The convening authority disapproved the findings of guilty for specifications 1 and 3.  The sentence was approved.

5.  On 18 July 1985, the USACMR provided in a Memorandum Opinion that, wherein the court found specifications 1 and 3 to be multiplitous for the findings of specifications 2 and 4, respectively, the court accordingly set aside the findings of guilty for specifications 1 and 3.  The remaining findings of guilty and the sentence were affirmed.

6.  Special Court-Martial Order Number 7, U.S. Army Correctional Activity, Fort Riley, Kansas, dated 6 January 1986, affirmed the sentence.  Article 71(c) having been complied with, the sentence was to be executed.



7.  The applicant's DD Form 214 shows he was discharged from the Regular Army on 28 January 1986 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, due to court-martial.  He received a bad conduct characterization of service.

8.  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.

9.  The five letters of support provided by the applicant essentially state that he is a loyal family man and an exemplary citizen who is involved in many areas of service to others in promoting social change.  His wife describes his annual commitment to feeding the homeless on Thanksgiving Day.  His younger sister states he was a faithful employee in the computer technology industry prior to opening his own business in the auto industry where he employed mechanics, body shop workers and sales people, thereby contributing to the local community.  His brother-in-law states that he has known the applicant since 1984.  He describes the applicant has having a big heart and a wonderful sense of humor.  He keeps his promises and has matured tremendously since his discharge from the Army.  He has had a great deal of success.  The applicant's pastor writes that he has known him for 11 years during which he has been a great member and contributor to the congregation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to honorable and the reason for discharge should be changed to ETS because none of the offenses were cognizable in a U.S. court and the offenses are no longer considered by society as being as serious as they were at the time of his conviction.

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



3.  The applicant's argument that his court-martial charges were not cognizable in a U.S. court is without merit.  Had his offenses been committed within the jurisdiction of a U.S. court they would indeed have been triable by that court.

4.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was almost 21 years of age, 
had satisfactorily completed training, and had served 1 year and 7 months before any negative incidents are documented.  His prior satisfactory performance demonstrates his capacity to serve and shows he was neither too young nor immature.

5.  Furthermore, the applicant's argument that he was convicted of two counts of possessing 1.4 grams or less of hashish is contrary to the evidence of record.  He was, in fact, convicted of the more serious charge of distributing marijuana in the hashish form.

6.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of a less than honorable discharge from military service.

7.  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 seriousness of the applicant's criminal behavior, the type of discharge directed, and the reason for discharge was appropriate.  As a result, clemency is not warranted in this case.

8.  In view of the above, the applicant's request should be denied.

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)                                         AR20110021800



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ABCMR Record of Proceedings (cont)                                         AR20110021800



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