IN THE CASE OF:	  

		BOARD DATE:  22 May 2012

		DOCKET NUMBER:  AR20110023635 


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 a general discharge.

2.  The applicant states he served his country and the U.S. Army honorably for 7 years.  He made a mistake in judgement by hanging around the wrong people. During that time, he was misled and confused.  He truly regrets that he was unable to complete his military career.  It has been quite a few years since his separation from the Army.  Since then he has continued to be an upstanding citizen and a respectable part of society.  He would greatly appreciate an upgrade of discharge.

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.  Having had prior active service, the applicant's records show he enlisted in the Regular Army on 28 May 1981 and he held military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained during his military service was sergeant/E-5.

3.  He was awarded the Army Service Ribbon, Army Good Conduct Medal (2nd Award), Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Hand Grenade Bar.

4.  Headquarters,197th Infantry Brigade, Fort Benning, GA, Special Court-Martial Order Number 3, dated 23 February 1982, shows he was found guilty by a special court-martial on 14 January 1982 of one specification of resisting lawful apprehension by a military policeman on 31 October 1981.  He was sentenced to a forfeiture of $150.00 pay for 6 months.

5.  Headquarters, 3rd Infantry Division, Germany, General Court-Martial Order Number 16, dated 15 March 1985, shows he was found guilty by a general court-martial on 20 December 1984 of one specification each of wrongfully possessing drug paraphernalia and wrongfully possessing heroin on or about 7 October 1984.  He was sentenced to a dishonorable discharge, confinement for 2 years, a forfeiture of all pay and allowances, and reduction to private (PVT)/E-1.

6.  On 15 March 1985, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 9 months, a forfeiture of all pay and allowances, and reduction to PVT and except for the bad conduct discharge ordered the sentence executed.  

7.  On 25 November 1985, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

8.  U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 339, dated 13 May 1986, shows the finding and sentence were affirmed and the bad conduct discharge was ordered to be executed.

9.  On 23 May 1986, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 3, as a result of court-martial with a bad conduct characterization of service.  He completed 4 years, 5 months, and 2 days of creditable active service during this period of service with 204 days of lost time due to being in confinement.

10.  Army Regulation 635-200 sets forth the basic policy governing 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.

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 evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  After a review of the applicant's record of service, it is clear his service did not meet the criteria for an honorable or a general discharge, or any other characterization of service other than the one he received.  Therefore, he is not entitled to the requested relief.


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)                                         AR20110023635



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ABCMR Record of Proceedings (cont)                                         AR20110023635



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