IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120007275 


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 that his bad conduct discharge (BCD) be upgraded and the narrative reason for discharge be changed. 

2.  The applicant states his discharge was improper because it was based on one incident, a pre-service conviction.

3.  The applicant provides no additional documentary evidence in support of his request.

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.  A DD Form 1966 (Record of Military Processing - Armed Forces of the United States), completed by the applicant on 27 March 1978, shows that he denied any involvement with police or judicial authorities.

3.  On 28 March 1978, he enlisted in the U.S. Army Reserve (USAR).  He was discharged from the USAR on 29 May 1978 to enlist in the Regular Army (RA).

4.  The applicant enlisted in the RA on 30 May 1978 for a period of 3 years.  He was awarded military occupational specialty 36C (Wire System Installer) and he served in Japan from 19 September 1978 to 16 March 1980.

5.  He reenlisted in the RA on 11 February 1981 for a period of 3 years.  He extended his reenlistment obligation for a period of 12 months to meet the overseas service requirement for assignment to Belgium on 1 February 1982.

6.  In September 1984, at Mons, Belgium, the applicant was convicted at a special court-martial of wrongful possession of some amount of cocaine on
1 February 1984.

7.  On 19 September 1984, he was sentenced to forfeit $200.00 pay for
4 months, to be confined for 120 days, to be reduced to the lowest enlisted grade, and to be discharged with a BCD.

8.  On 22 February 1985, the convening authority approved the sentence, except for the part of the sentence extending to a BCD, and ordered it executed.

9.  On 7 June 1985, the United States Army Court of Military Review affirmed the findings and the sentence as approved by the convening authority.

10.  Headquarters, U.S. Army Correctional Activity, Fort Riley, Kansas, Special Court-Martial Order Number 210, dated 26 September 1985, shows the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the BCD was ordered duly executed.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 24 October 1985 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, as a result of court-martial.

   a.  He had completed 4 years, 5 months, and 15 days of net active service this period; 2 years, 8 months, and 12 days of total prior active service; and
2 months and 3 days of total prior inactive service.

   b.  He had 89 days of time lost under Title 10, U.S. Code, section 972, from 20 September through 17 December 1984.

12.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 his discharge should be upgraded and his narrative reason for discharge should be changed because his discharge was based on a pre-service conviction; therefore, it was improper.

2.  The evidence of record fails to show the applicant had a pre-service conviction.

3.  Records show the applicant's BCD was based on conviction at a special court-martial of the offense of wrongful possession of cocaine, on 1 February 1984, while he was serving overseas in Belgium.

4.  Thus, the applicant's contention is refuted by the evidence of record.

5.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.  Thus, the narrative reason and characterization of the applicant's discharge are proper and equitable.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120007275



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ABCMR Record of Proceedings (cont)                                         AR20120007275



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