IN THE CASE OF:	  

		BOARD DATE:  8 November 2012

		DOCKET NUMBER:  AR20120006306 


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 upgrade of his Bad Conduct Discharge (BCD).

2.  He states he grew up in the projects of Washington, D.C. where there was not a lot for a young man to do.  Although he had summer jobs, there was a lot of trouble at that time he could get into.  He dropped out of school at the age 15 and started hanging with the wrong crowd and did not understand the consequences of his actions at the time. 

3.  He adds that he wanted to join the Army at the age of 17 but his mother would not allow him to so he tried to finish school.  He took a preparation course for General Educational Development (GED) Test.  His mentor at the time, who is now deceased, encouraged him to join the Army; however, he got into trouble by association with someone who robbed a person.  

4.  The applicant states the charges were dropped because the victim told the judge the applicant saved his life.  He contends the Army molded him into a man and when his family attended his graduation and saw him in uniform, they were very proud of him.  During his tour of duty, he got to see other countries and how the people lived.  He served his country for over 7 years with no regrets. 

5.  He states he received a few reprimands but nothing major until the end of his tour.  During that period he was still young and he took someone to buy some drugs that he did not have any intention of selling.  The person he took to purchase the drugs was an undercover criminal investigation division (CID) agent; however, the applicant was charged with the crime.  
6.  He felt the punishment was too harsh for only having one offense and all his prior accomplishments in the military did not make a difference to the judge:

* he obtained a GED while serving on active duty
* was awarded two Army Good Conduct Medals, Humanitarian Service Medal, Army Service Ribbon, the Driver Badge and many more 
* he always passed his military occupational specialty (MOS) test

7.  He adds that the type of discharge he received did not affect him until after the 11 September 2001 attacks, which made it difficult to obtain the type of work he was looking for.  He has earned a bachelor of science in Criminal Justice and graduated with honors.  He knows he made a bad decision over 26 years ago and he has paid the price.  He is requesting that this burden be lifted off of his shoulders so that he can fulfill his dreams and get a decent job.  

8.  The applicant provides:

* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letters from the National Personnel Records Center
* GED Test Diploma with scores
* college transcripts with various certificates of honors
* eleven letters of support from family and college faculty members
* documents from the District of Columbia Board of Elections and Ethics
* his resume

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 record shows he enlisted in the Regular Army on 26 October 1981.  He served in military occupational specialty 13B (Cannon Crewman) and the highest rank/grade he attained while serving on active duty was Specialist Four/E-4.
3.  In addition to the awards he listed, his record shows he was awarded the Army Achievement Medal. 

4.  On 2 June 1986, the applicant was convicted by general court-martial, pursuant to his plea, of wrongful distribution of about 88.0 grams of marijuana on 16 December 1985.  He was sentenced to a BCD, 18 months military confinement, forfeiture of $500 for 18 months, and reduction to private/E-1.  

5.  The portions of the sentence pertaining to forfeiture of pay and confinement were reduced by three months and the remaining portions of the sentence were approved and ordered executed except for the portion pertaining to the BCD.   

6.  On 15 October 1986, the U.S. Army Court of Military Review affirmed the court-martial's findings and the sentence.

7.  On 12 March 1987, the unexecuted portion of the sentence to confinement was remitted.  The sentence having been affirmed on 14 April 1987, the portion pertaining to the BCD was ordered executed.  Accordingly, on 24 April 1987 he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of a court-martial with a BCD.  He had completed 7 years, 2 months, and 26 days of net active service.

8.  His record documents no acts of valor or achievements which warrant special recognition.

9.  The applicant provided a transcript from Westwood College that shows he was awarded a bachelor of science in Criminal Justice on 17 May 2011 and received the honors of cum laude with grade point average of 3.6 out of a possible 4.0.

10.  He also provided various letters of support from college faculty members who cumulatively state:

* he was an extremely dedicated student who was focused on obtaining the highest level of academic excellence
* he was always looking for ways to improve his work
* the applicant is a hard worker with a can-do attitude
* he is a good listeners, respectful of other and interested in people
* he has demonstrated leadership abilities both inside and outside the classroom
* the applicant made a remarkable presence and tutored other classmates



11.  The applicant's letters of support from family members, employers and friends show he is:

* a very down-to-earth person who never loses his temper
* a very hard worker and always punctual 
* a person who sacrifices his own needs to help others
* striving to overcome the mistakes of his past and is doing quite well
* a dedicated member of the community who wants to work with troubled youths in order to make a difference in their lives
* an inspiration to everyone he encounters
* the first person in their family to purchase a home
* very well-mannered, honest, caring, dependable and a admirable man
* a person who has earned the respect of everyone who knows him

12.  He provided documents from the Board of Elections and Ethics showing his participation as an Election Day worker in the District of Columbia during the 2008 election cycles. 

13.  The resume he provided shows he held various security positions from 1994 to the present.  

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

	a.  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.  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.

15.  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.

16.  The Manual for Courts-Martial, in effect at the time, states violation of article 112a – Wrongful distribution of marijuana can receive a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his BCD was carefully considered; however, in the absence of evidence of error or injustice, it is without merit.

2.  He contends the punishment he received was too harsh having only committed one offense during his career.  Trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable law and his rights were fully protected.  

3.  Under the then current standards, the maximum punishment he could receive for wrongfully distributing marijuana was a Dishonorable Discharge, forfeiture of all pay and allowance and confinement for 15 years.  The punishment he received in the form of a BCD, 15 months confinement and forfeiture of only a portion of his pay for 15 months was not too harsh for the misconduct for which he was convicted.

4.  His post-service accomplishments have been noted; however, these factors along with his record of military service do not mitigate the circumstances nor the offenses which took place in December 1985.  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 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.







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)                                         AR20120006306





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ABCMR Record of Proceedings (cont)                                         AR20120006306



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