IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120001661 


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 that he was very young and made mistakes.  He has long since regretted not being able to serve his country.  As for a first time offense, he feels the action (dishonorable) was too severe.

3.  The applicant provides:

* General Court-Martial Order Number 729
* U.S. Army Court of Military Review Memorandum Opinions for himself and another service member
* Geneva Conventions Identification Card
* completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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's military records show he enlisted in the Regular Army (RA) on 20 January 1982, for 4 years.  On the date of his enlistment in the RA, he was 17 years and 9 months of age.  He completed training and he was awarded military occupational specialty (MOS) 05C (Radio Teletype Operator).  He was advanced to pay grade E-3 on 20 August 1982.  He served in Germany from 26 June 1982 through 2 October 1983.  

3.  On 3 October 1983, he was convicted by a general court-martial of one specification of wrongfully distributing 1.75 grams of marijuana in the hashish form to a military police investigator on 10 May 1983.

4.  He was sentenced to confinement for 4 years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a bad conduct discharge.

5.  On 21 October 1983, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 13 months, and forfeiture of all pay and allowances.

6.  On 24 February 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  There is no evidence he petitioned the U.S. Army Court of Military Appeals for a review of his case.  

8.  General Court-Martial Order Number 729, dated 16 October 1984, stated the sentence to a bad conduct discharge, forfeiture of all pay and allowances, confinement for 13 months, and reduction to pay grade E-1 was finally affirmed and the bad conduct discharge was ordered duly executed.

9.  He was discharged from active duty in pay grade E-1 on 16 November 1984 as a result of a court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-10, and issued a bad conduct discharge.  He was credited with completing 2 years of active service with lost time from 3 October 1983 to 29 July 1984.

10.  He provides copy of a U.S. Army Court of Military Review finding pertaining to another service member who was sentenced to a bad conduct discharge for larceny, housebreaking with intent to commit larceny, and disposition of the proceeds of the larceny in violation of a general regulation.
11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 3 of that regulation provided that a Soldier would be given a dishonorable 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.

12.  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.

13.  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.

14.  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 convicted by a general court-martial of the wrongful distribution of marijuana on 10 May 1983.  On 16 November 1984, he was discharged pursuant to the sentence of a general court-martial with a bad conduct discharge.  

2.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  His contention that his youth made him do the wrong thing is without merit.  He was 17 years and 9 months of age when he enlisted in the RA.  He completed training, was awarded an MOS, advanced to pay grade E-3, and completed a 1-year period of service in Germany prior to being tried.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  
4.  Notwithstanding the U.S. Army Court of Military Review finding he provides pertaining to another service member, he has not provided sufficient evidence to show that his discharge is unjust.  There is no error or injustice apparent in his record.  There is also no evidence that 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 fully 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 offense and 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.

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)                                         AR20120001661





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ABCMR Record of Proceedings (cont)                                         AR20120001661



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