IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120003639 


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, in effect, an upgrade of his dishonorable discharge.

2.  The applicant states, in effect:

* he had no record of any other offenses
* it was his first offense
* the punishment was too harsh considering the nature of the offense
* his age at the time of the offense should be considered
* his offense was nonviolent

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 23 September 1980, at age 17, in pay grade E-1.  He completed training as an electronic instrument repairer.  He was promoted to pay grade E-2 on 23 March 1981.  He promoted to pay grade E-3 on 10 January 1982.

3.  On 21 February 1982, the applicant was convicted, contrary to his pleas, by a general court-martial of:

* introducing 176 grams, more or less, of marijuana into a military post
* possession of 197 grams, more or less, of marijuana
* selling marijuana

4.  The applicant was sentenced to:

* dishonorable discharge
* confinement at hard labor for 18 months
* reduction to pay grade E-1
* total forfeiture of pay

5.  The convening authority approved the sentence as adjudged and pending completion of appellate review, ordered the applicant confined in the United States Disciplinary Barracks, Fort Leavenworth, KS, or elsewhere as competent authority directed.

6.  On 30 November 1982, the U.S. Army Court of Military Review disqualified the convening authority due to impartiality and set aside the action.  The record of trial was returned to the Judge Advocate General for a new review and action by a different convening authority. 

7.  On 14 December 1982, the U.S. Court of Military Appeals determined that the convening authority was not disqualified, reversed the decision of the U.S. Army Court of Military Review and remanded the applicant's case for consideration of the issues raised by the applicant and not considered by the U.S. Army Court of Military Review in its initial decision.

8.  On 23 May 1983, the U.S. Court of Military Review considered the matters raised by the applicant wherein he questioned the sufficiency of the evidence of his guilt and the reliability of the laboratory report.  The court found them to be without merit.  The evidence of record established his guilt, beyond a reasonable doubt, of the offenses of which he was convicted.

9.  General Court-Martial Order Number 89, issued on 27 January 1984, by the United States Army Disciplinary Barracks, Fort Leavenworth, KS, affirmed the findings of guilty and ordered the sentence executed.

10.  On 16 February 1984, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of duly approved and affirmed general court-martial.  He completed 1 year, 10 months, and 25 days of net active service.  He received a dishonorable discharge.

11.  Army Regulation 635-200 (Enlisted Personnel – Personnel Separations), paragraph 3-10, in effect at that time, provides that:

	a.  A Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general courtmartial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.

   c.  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.

12.  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 applicant's contentions have been noted.

2.  Age and immaturity are not bases for upgrading the applicant's discharge.  He had served for more than one year prior to the incidents that led to his discharge. He should have been fully aware of the Army’s standards concerning illegal drugs.

3.  The available evidence shows the applicant was convicted by a general court-martial of possessing, selling and introducing marijuana onto a military post.  He was sentenced to a dishonorable discharge, confinement at hard labor, reduction in pay grade, and total forfeiture of pay.  Considering the nature of his offenses, it does not appear that the dishonorable discharge he received is too harsh.

4.  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 applicant's undistinguished record of service 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.

5.  In view of the foregoing, his 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)                                         AR20120003639





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ABCMR Record of Proceedings (cont)                                         AR20120003639



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