IN THE CASE OF:	  

		BOARD DATE:  27 June 2013

		DOCKET NUMBER:  AR20120021894 


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 general discharge to honorable.

2.  The applicant states:

* his discharge should be upgraded due to his merit and accomplishments during his active duty service
* he was young at the time and now he is mature and very responsible

3.  The applicant provides no additional 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 was born on 1 November 1962.  He enlisted in the Regular Army on 17 March 1983 for a period of 3 years.  He completed his training and was awarded military occupational specialty 11B (infantryman).

3.  On 9 September 1985, he was convicted by a special court-martial of distributing marijuana (15 grams) on or about 24 April 1985.  He was sentenced to confinement for 3 months, forfeiture of $200.00 pay per month for 3 months, reduction to pay grade E-1, and a bad conduct discharge.  On 13 November 1985, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 30 days, forfeiture of $200.00 pay per month for 1 month, and reduction to pay grade E-1.

4.  The decision of the U.S. Army Court of Military Review is not available.  However, on 28 October 1986, the convening authority ordered execution of the applicant's bad conduct discharge, indicating the sentence was affirmed.

5.  He was issued a bad conduct discharge on 17 November 1986 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a conviction by court-martial.  He completed a total of 3 years, 7 months, and 7 days of creditable active service with 24 days of lost time.

6.  On 11 February 1997, the Army Discharge Review Board (ADRB) upgraded his bad conduct discharge to a general discharge.

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 states that a Soldier will be given a bad conduct discharge 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, 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was young at the time.  However, age is not a sufficiently mitigating factor.  He was 20 years of age when he enlisted and he successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  In addition, he completed over 2 years of service prior to his misconduct.

2.  His trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

3.  In February 1997, the ADRB granted clemency by changing the characterization of his discharge to general under honorable conditions.

4.  His contention his discharge should be upgraded to honorable due to his merit and accomplishments during his active duty service was noted.  However, his record of service included one special court-martial conviction for distributing marijuana and 24 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

5.  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.  The type of discharge directed and the reasons were therefore appropriate.  As a result, no further clemency is warranted in this case.

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



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 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)                                         AR20120021894



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ABCMR Record of Proceedings (cont)                                         AR20120021894



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