IN THE CASE OF:	 

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120006622 


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:

* His discharge was improper because it was based on one infraction within 5 years of service
* He was heavily involved in substance abuse
* He has changed his life around since discharge
* He is now a productive member of the society

3.  The applicant he did not provide any 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's records show he enlisted in the Regular Army on 3 November 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewman).  

3.  The applicant’s records also show he served in Germany from on or about 13 November 1981 to on or about 23 June 1983.  His awards and decorations include the Army Service Ribbon, Overseas Service Ribbon, and the Marksman Marksmanship Qualification Badge with Rifle Bar.  

4.  On 24 June 1983, the applicant pled guilty and he was convicted at a special court-martial of one specification of wrongfully possessing marijuana, one specification of wrongfully using marijuana, and one specification of wrongfully distributing marijuana.  The court sentenced the applicant to a reduction to private (PVT)/E-1, a forfeiture of $382.00 pay for 6 months, confinement at hard labor for 4 months, and a bad conduct discharge.  

5.  On 26 July 1983, the convening authority (the Commander, 3rd Armored Division) approved the sentence but suspended the portion adjudging confinement at hard labor in excess of 3 months for 6 months and except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

6.  On 24 December 1985, the U.S. Army Court of Military Review ordered the Record of Trial returned to The Judge Advocate General for submission to a different convening authority to take action.

7.  On 27 May 1986, the new convening authority, Commanding General, U.S. Army Combined Arms Center and Fort Leavenworth, ordered the action taken by the Commander, 3rd Armored Division on 26 July 1983 set aside and after having completed another review, he approved a sentence of a bad conduct discharge, confinement at hard labor for 3 months, a forfeiture of $382.00 pay for 6 months, and reduction to PVT/E-1.  He ordered the record of trial be forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

8.  On 16 September 1986, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

9.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, Special Court-Martial Order Number 10, dated 4 December 1986, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.
10.  The applicant was discharged from the Army on 2 January 1987.  The 
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations) as a result of court-martial, with a bad conduct discharge.  This form further shows the applicant completed a total of 5 years of creditable military service and he had 61 days of lost time.

11.  Army Regulation 635-200, 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.  

12.  Army Regulation 635-200, 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.  

13.  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 contends that his bad conduct discharge should be upgraded.

2.  The evidence of record shows the applicant’s trial by special court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  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.

3.  The applicant's contention of impropriety of his discharge relate to evidentiary matters which could have been raised or adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.

4.  Based on his record of misconduct and after a careful review of the applicant’s entire record of service it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge.

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)                                         AR20120006622



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ABCMR Record of Proceedings (cont)                                         AR20120006622



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