BOARD DATE:	  7 May 2013

		DOCKET NUMBER:  AR20120019298 


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 to a general discharge.

2.  The applicant states:

* he is not saying he did not make a mistake
* he joined the Army at the start of his senior year of high school
* he served most all of his tour of duty, only to make a foolish mistake 2 months before the end of his duty
* we all were young once and full of ourselves
* he was a model Soldier up until the end and he has been a model citizen since he has been out of the Army
* we should not have to pay the rest of our lives for minor infractions that were made in the past
* he admits he was wrong for what he did and now he needs a little help from the country for which he served and loves so much
* he is asking the Board to upgrade his discharge to general so he can obtain some benefits, such as medical, dental, and home

3.  The applicant provides a self-authored statement (undated), and 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 enlisted in the Regular Army on 14 July 1981, in pay grade E-1. He completed training as a tactical communications system operator/mechanic.  He was promoted through the ranks to pay grade E-4.

3.  On 1 October 1984, the applicant was convicted, pursuant to his pleas, by a general court-martial of:

* conspiracy to commit the offense of wrongful possession and distribution of marijuana in the hashish form
* obtaining "DM 1100" from another Soldier for the purchase of marijuana in the hashish form
* purchasing approximately 140.7 grams of marijuana in the hashish form
* wrongfully purchasing 140.7 grams of marijuana, a Schedule I controlled substance with intent to distribute

4.  The applicant was sentenced as follows:

* forfeiture of all pay and allowances
* reduction to pay grade E-1
* confinement for 2 years
* bad conduct discharge

5.  The convening authority approved only so much of the sentence as provided for forfeiture of all pay and allowance, reduction to pay grade E-1, confinement for 22 months, and a bad conduct discharge.  Except for that portion pertaining to his bad conduct discharge, the convening authority ordered the sentence executed.

6.  The U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact, and affirmed the findings of guilty and the sentence.

7.  General Court-Martial Order Number 303, issued by the U.S. Army Correctional Activity, Fort Riley, Kansas, dated 7 June 1985, noting that the sentence had been finally affirmed, ordered the bad conduct discharge executed.

8.  On 1 August 1985, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 3 years, 2 months, and 15 days of net active service this period.  He received a bad conduct discharge.

9.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-11 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 duly executed.

   b.  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.
   
   c.  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.

DISCUSSION AND CONCLUSIONS: 

1.  The applicant was convicted by a general court-martial of conspiracy to commit the offense of wrongful possession and distribution of marijuana, obtaining "DM 1100" from another Soldier for the purchase of marijuana, purchasing approximately 140.7 grams of marijuana, and wrongfully purchasing 140.7 grams of marijuana, a Schedule I controlled substance with intent to distribute.  He was discharged as a result of a duly reviewed and affirmed general court-martial conviction.  He has not provided any evidence to show the type of discharge he received was in error or unjust.  Therefore, the bad conduct discharge he received appropriately characterized his service.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other program benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  

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)                                         AR20120019298





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ABCMR Record of Proceedings (cont)                                         AR20120019298



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