BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120008623 


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 (BCD).

2.  The applicant states he would like to appear before the Board to provide his explanation.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 was born on 1 November 1952.  After having had prior service, he enlisted in the Regular Army on 28 June 1975.  He completed training and he was awarded military occupational specialty 81D (Map Compiler).  He was honorably discharged on 30 March 1978 for the purpose of immediately reenlisting on 31 March 1978.  The highest rank/grade he attained while serving on active duty was staff sergeant/E-6.  However, he held the rank/grade of private (PV1)/E-1 at the time of his discharge.

3.  His record contains General Court-Martial Order Number 30, issued by Headquarters, 3d Armored Division, dated 7 June 1982, which shows the applicant was found guilty of attempting to and conspiring to sell 11 kilograms of marijuana in the hashish form, outside the territorial limits of the United States, on or about 9 October 1981, and for wrongfully possessing 2 grams, more or less, of marijuana in the hashish form, outside the territorial limits of the United States, on or about 9 October 1981.  The following sentence was adjudged on 
18 March 1982:

* reduction to PV1/E-1
* a forfeiture of $850.00 pay for 15 months
* confinement at hard labor for 15 months
* a BCD

4.  On 7 January 1983, the U.S. Army Court of Military Review upheld the findings of guilty, found the sentence correct in law and fact, and affirmed the findings of guilty and the sentence.

5.  The applicant's record contains General Court-Martial Order Number 369, issued by United States Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, dated 16 May 1983, which states in a general court-martial case the applicant's sentence to a BCD, a forfeiture of $250.00 pay for 12 months, confinement at hard labor for 12 months, and reduction to private/E-1, adjudged on 18 March 1982, as promulgated in General Court-Martial Order Number 30, issued by Headquarters, 3rd Armored Division, dated  7 June 1982, has been affirmed.  Pursuant to General Court-Martial Order Number 418, issued by Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth, KS, dated 5 November 1982, the unexecuted portion of the sentence pertaining to confinement was remitted, effective 16 November 1982.  The provisions of Article 71(c) having been complied with, the sentence, as thus modified, will be duly executed.

6.  On 26 May 1983, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial with a BCD.  Having completed 5 years, 8 months, and 25 days of prior active service, he completed an additional 4 years, 5 months, and 28 days of creditable active service during the period under review with 243 days of time lost during this period.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a BCD 
pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

8.  Army Regulation 635-200 provides for the following characters of service:

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.

   c.  Also provides that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

9.  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.

10.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has requested to personally appear before the Board, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance.
2.  The applicant's contention that his BCD should be upgraded has been carefully considered.  However, there is insufficient evidence to support this claim.

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations.

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, 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)                                         AR20120008623



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ABCMR Record of Proceedings (cont)                                         AR20120008623



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