BOARD DATE: 5 November 2013
DOCKET NUMBER: AR20130004352
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 that his bad conduct discharge (BCD) be upgraded to a more favorable characterization of service.
2. The applicant states that he was court-martialed for possession of marijuana and was not given any type of drug treatment. He goes on to state that he was allowed to serve his full enlistment but was given an other than honorable discharge. He also states that his discharge is interfering with his Department of Veterans Affairs benefits.
3. The applicant provides no additional documents with his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 13 October 1975 for a period of 3 years, training as a field artillery target acquisition specialist, and assignment to Fort Sill, Oklahoma.
2. He completed his basic training at Fort Leonard Wood, Missouri and his advanced individual training at Fort Sill, Oklahoma and remained at Fort Sill for his first assignment.
3. He was transferred to Germany on 10 May 1977 and was advanced to the pay grade of E-4 on 10 May 1978.
4. On 4 September 1978, he was honorably discharged for the purpose of immediate reenlistment. He had served 2 years, 10 months, and 22 days of active service.
5. On 5 September 1978, he reenlisted for a period of 4 years, assignment to Fort Stewart, Georgia and a selective reenlistment bonus.
6. He departed Germany on 6 October 1978 and was transferred to Fort Stewart on 7 November 1978.
7. On 28 November 1979, he was convicted by a special court-martial of the wrongful possession of 430 grams of marijuana. He was sentenced to be discharged with a BCD.
8. On 24 July 1980, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.
9. On 2 June 1981, the United States Court of Military Appeals denied the applicants petition for clemency. On 6 August 1981, the commanding general directed that his sentence to be discharged be executed.
10. Accordingly, the applicant was discharged pursuant to a duly-reviewed and affirmed court-martial conviction on14 August 1981. He completed 2 years, 11 months, and 10 days of his last enlistment.
11. On 17 September 1982, the Army Discharge Review Board determined his discharge was both proper and equitable and voted unanimously to deny his request.
12. 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 and supporting documents have been noted; however, he did not provide sufficient evidence to warrant an upgrade of his discharge when considering the serious nature of his offense.
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 and the BCD appropriately characterizes the misconduct for which he was convicted. As such, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case and there is an insufficient evidentiary basis for granting the applicant an upgrade of his BCD to any other characterization of service.
3. The applicant could have referred himself for drug treatment. In addition, it appears he was retained in service for almost two years after his court-martial only because the appeal process was pending.
4. Additionally, 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. Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. As a result, clemency is also 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) AR20130004352
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ABCMR Record of Proceedings (cont) AR20130004352
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