IN THE CASE OF:
BOARD DATE: 25 March 2014
DOCKET NUMBER: AR20130012318
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 was set up by another service member and he was handed a bag of which he was unaware of its contents.
3. The applicant provides no additional documentary 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 enlisted in the Regular Army on 10 May 1984 for a period of
3 years. He completed his training and he was awarded military occupational specialty 52D (power generation equipment repairer). He attained the rank of specialist four on 1 October 1985.
3. On 4 May 1987, in accordance with his plea, he was convicted by a general court-martial of distributing 79.28 grams of marijuana. He was sentenced to confinement at hard labor for 18 months, reduced to E-1, forfeiture of all pay and allowances, and a bad conduct discharge. On 16 June 1987, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, forfeiture of all pay and allowances, confinement for 9 months, and reduction to E-1.
4. On 30 July 1987, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.
5. On 26 January 1988, the convening authority ordered the bad conduct discharge duly executed.
6. He was issued a bad conduct discharge on 8 February 1988 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 3 years, 2 months, and 4 days of creditable active service with 205 days of lost time.
7. 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 3-7b 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.
8. 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 contention he was set up by another service member relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.
2. 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.
3. His record of service included one general court-martial conviction for distributing marijuana. As a result, his record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.
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 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.
5. 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) AR20130012318
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