BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130010129 


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:

	a.  The records are based solely on forms of entrapment.  He believes his discharge should be upgraded because of the amount of time he served and the unfairness of the entrapment.

	b.  He was approached by an informant prior to his expiration of term of service (ETS) date for the sole purpose of entrapment because he chose not to reenlist.  The entrapment worked because he knew and trusted the informant as a fellow Soldier, but he was not aware of the informant's illegal intentions.  Because the informant was in trouble and wanted to get out of trouble, he needed a scapegoat and unfortunately the informant chose him.

	c.  He did not own a vehicle and he did not have possession of or sell drugs that belonged to the informant.  He was simply in the same vehicle along with the informant.  They built a case against him to make it look as if the possession of drugs belonged to him.  He was serving in the rank of specialist four and was a Soldier in good standing 2 weeks prior to his ETS.  Then and now he still has the utmost respect for the time he served in the Army.  Now, 30 years later, he believes he was purposely sought out because he did not want to reenlist and believes this came from the "front office" at Fort Knox, KY.

	d.  If he thought there were no chance his discharge would be upgraded for the injustice that has been done to many Soldiers like himself, especially black Soldiers from Kentucky who at the time who did not want to reenlist there, he would not be writing this letter.

3.  The applicant provides a self-authored statement.

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 for 3 years in pay grade E-1 on 26 January 1978.  He completed advanced individual training and was awarded military occupational specialty 12B (combat engineer).  He was advanced to pay grade E-3 on 15 November 1978.  He served in Germany from 15 May 1978 through 14 May 1980.  He was then assigned to Fort Knox, KY.

3.  On 10 March 1981, the applicant was convicted by a special court-martial of one specification each of wrongfully having in his possession five bags containing some quantity of marijuana on or about 4 December 1980, wrongfully transferring five bags containing some quantity of marijuana on or about 4 December 1980, and being absent without leave from 16 to 21 February 1981. 
He was sentenced to confinement at hard labor for 1 month, reduction to pay grade E-1, and a bad conduct discharge.

4.  On 26 March 1981, the convening authority approved the sentence, except for the bad conduct discharge, and he was placed in confinement.

5.  On 27 May 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case.

7.  Headquarters, U.S. Army Armor Center and Fort Knox, KY, Special Court-Martial Order Number 180, dated 21 August 1981, affirmed the applicant's sentence and ordered it duly executed.

8.  He was discharged in pay grade E-1 on 8 September 1981 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 11, as a result of a court-martial, other.  He was issued a bad conduct discharge.  He completed 3 years, 6 months, and 15 days of net active service with 29 days of lost time.

9.  On 3 September 1993, the Army Discharge Review Board denied his request for an upgrade of his discharge.

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

	a.  Chapter 11, in effect at the time, provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally has met the standards of acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be 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.

11.  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 change a court-martial 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 evidence of record shows the applicant was convicted by a special court-martial of wrongfully possessing and transferring marijuana and being AWOL and he was sentenced to a bad conduct discharge.  His discharge was affirmed and he was discharged accordingly on 8 September 1981.

2.  He provided no evidence to show his discharge was unjust.  There is no error or injustice apparent in his record.  There also is no evidence his court-martial proceedings were unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to an honorable or a general discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.

3.  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 laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

4.  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 his offenses and absent any mitigating factors, the type of discharge directed and the reasons 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 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)                                         AR20130010129



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ABCMR Record of Proceedings (cont)                                         AR20130010129



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