IN THE CASE OF:	  

		BOARD DATE:  24 September 2013

		DOCKET NUMBER:  AR20130002143 


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.

2.  The applicant states:

* he served his country with honor and he was quite young at the time of his slight infraction
* he really did not understand what was happening during his court-martial; he was age 25 and now he is age 55
* in 1983 the United States was at peace and not engaged in any conflicts
* the nature of his infraction would have been viewed as a minor infraction and he may have received an Article 15, if we were engaged in war
* it has been 30 years
* he has never had any brush with the law
* he has a good job and has been an outstanding citizen his entire life 

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 31 March 1958.  He enlisted in the Regular Army on 31 March 1981 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 63D (self-propelled field artillery system mechanic).  

3.  Between 9 June 1981 and 23 August 1982, nonjudicial punishment (NJP) was imposed against him on three occasions for:

* being absent from his unit for 30 minutes
* possessing marijuana and a hash pipe 
* violating a lawful general regulation (fleeing the scene of an accident)

4.  On 8 March 1983, he was convicted by a special court-martial of distributing marijuana.  He was sentenced to confinement at hard labor for 1 month, reduced to E-1, a forfeiture of $382.00 pay for 2 months, and a bad conduct discharge.  On 12 April 1983, the convening authority approved the sentence.

5.  On 29 July 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 26 October 1983, the convening authority ordered the bad conduct discharge duly executed.

7.  He was issued a bad conduct discharge on 13 December 1983 under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of a court-martial.  He completed a total of 2 years, 7 months, and 16 days of creditable active service with 27 days of lost time.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.
   b.  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.

	c.  Paragraph 3-7b provides 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.

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 quite young at the time of his slight infraction.  However, age is not a sufficiently mitigating factor.  He was age 23 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, distributing marijuana is a serious offense, not a slight infraction.   

2.  He contends it has been 30 years; however, the passage of time is normally not a basis for upgrading a discharge.

3.  He contends he has not been in any trouble with the law and he has been an outstanding citizen his entire life.  However, good post-service conduct alone is not a basis for upgrading a discharge.

4.  A 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 characterizes the misconduct for which he was convicted.


5.  His record of service included three NJP's, one special court-martial conviction for distributing marijuana and 27 days of lost time.  As a result, his record of service was not satisfactory and 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 or a general discharge.

6.  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 were therefore appropriate.  As a result, clemency is not warranted in this case.

7.  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 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)                                         AR20130002143



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ABCMR Record of Proceedings (cont)                                         AR20130002143



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