IN THE CASE OF:	  

		BOARD DATE:  3 January 2013

		DOCKET NUMBER:  AR20120009795 


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) to a discharge under other than honorable conditions.

2.  He states during his court-martial there were accusations pertaining to his possession of marijuana.  He believes these accusations were false, as he was never caught with marijuana in his possession.  He was subjected to an investigation from German police and the Central Intelligence Agency for multiple months prior to his court-martial.  During the investigation he was not caught with drugs in his possession.  He was allowed to accompany his unit on a Morale, Welfare, and Recreation trip to London, England for 4 days during the investigation; therefore, he did not believe his command felt he was an endangerment to his fellow Soldiers.

3.  He provides a:

* Certification of Military Service
* Certificate of Achievement
* Certificate of Commendation
* 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 enlisted in the Regular Army (RA) on 12 December 1977 and served until he was honorably discharged on 24 July 1980 for the purpose of immediate reenlistment.

3.  He reenlisted in the RA on 25 July 1980.  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  However, he held the rank/grade of private/E-1 at the time of separation.

4.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) which shows he received nonjudicial punishment under the provisions of Article 15 on 25 January 1983 for wrongful possession of some amount of marijuana in a smoking device on or about 16 September 1982 at the Frankfurt International Airport located in Frankfurt, Germany.  A portion of his punishment for this offense was suspended for 180 days, but vacated when he failed to go at the time prescribed to his place of duty on 8 January 1983.

5.  General Court-Martial (GCM) Order Number 25, published by Headquarters, 3d Armored Division, dated 4 June 1984, shows the applicant was found guilty of three specifications of violating Article 134 of the UCMJ for:

* wrongful distribution of unknown quantities of marijuana in the hashish form on numerous occasions between 1 November 1982 and 31 July 1983
* wrongful possession with intent to distribute approximately 20 grams of marijuana in the hashish form on or about 25 November 1982
* wrongful possession with intent to distribute approximately 30 grams of marijuana in the hashish form sometime between 1 and 15 January 1983

6.  The following sentence was adjudged on 30 March 1984:

* Bad conduct discharge
* Confinement at hard labor for 10 months
* Reduction to private/E-1
* Forfeiture of all pay and allowances

7.  On 4 June 1984, the sentence was approved and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  Pending completion of the appellate review, the applicant remained in confinement until 18 October 1984.

8.  On 18 October 1984, the applicant was placed on excess leave for an indefinite period awaiting the outcome of an appellate review of his punitive discharge.

9.  The U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.

10.  GCM Order 39, issued by U.S. Army Correctional Activity, Fort Riley, KS, on 16 January 1985, shows the appropriate authority ordered the BCD to be duly executed.

11.  His DD Form 214 shows he was discharged on 24 January 1985 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 as the result of court-martial.  This form also shows his character of service as "Bad Conduct."  He was credited with lost time during the period 30 March through 17 October 1984 due to imprisonment.

12.  The applicant provides:

	a.  a Certificate of Achievement awarded to him on 23 January 1981 for exceptionally meritorious achievement from 11 to 25 September 1980 while participating in Field Training Exercise Certain Rampart.

	b.  a Certificate of Commendation presented to him on 23 July 1981 in recognition of outstanding support of 49th Armored Division Range Operations for AT81.


13.  Army Regulation 635-200:

	a.  Paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial.

	b.  Paragraph 3-10, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

	c.  Paragraph 3-11, 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.

14.  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 are duly noted.  However, they are not sufficiently mitigating to absolve his misconduct during his period of service.

2.  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.

3.  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.


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)                                         AR20120009795





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ABCMR Record of Proceedings (cont)                                         AR20120009795



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