IN THE CASE OF:	  

		BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130016761 


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 (BCD) to a general discharge.

2.  The applicant states he was discharged from the Army in 1985 after being caught with marijuana.  He acknowledges he was wrong.

   a.  He states that he is married and has an adult son and daughter.  He has been working at a sales job for 28 years.  He has not been in trouble with the law since his discharge, except for minor traffic violations.  He volunteers to serve in his community and he also attends church on a weekly basis.  

   b.  He is now 56 years old, he has maintained a positive direction over the course of the past 30 years, and he deeply regrets the mistake he made that led to his discharge.  He adds that serving his country was an honor for him.

3.  The applicant provides eight character reference letters in support of his application.

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 12 November 1980.

3.  On 22 August 1983, the separation authority disapproved the applicant's request for discharge for the good of the service (in lieu of court-martial) and directed that court-martial charges not be further delayed.

4.  On 6 September 1983, the applicant was convicted at a special court-martial (SPCM) of:

* wrongfully possessing 17.18 grams of marijuana
* wrongfully distributing 17.18 grams of marijuana
* wrongfully possessing 7.19 grams of marijuana
* wrongfully distributing 7.19 grams of marijuana

5.  The applicant was sentenced to:

* reduction to the grade of private/E-1
* a forfeiture of $200.00 pay for 4 months
* confinement at hard labor for 4 months
* receive a BCD

6.  On 7 December 1983, the SPCM Convening Authority approved the sentence and directed:

* the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review
* confinement of the applicant pending completion of the appellate review

7.  SPCM Order Number 31, issued by Headquarters, 1st Cavalry Division, Fort Hood, TX, dated 10 September 1985, shows the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, and that portion of the sentence pertaining to confinement having been served, the sentence was ordered duly executed.

8.  On 3 October 1985, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 
chapter 3, as a result of court-martial with a BCD.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 
4 years, 7 months, and 13 days of net active service.

9.  In support of his request the applicant provides the following letters written by:

   a.  Father Andres A----, Order of Augustinian Recollects, Pastor, Saint Anthony's Catholic Church, Anthony, NM, dated 23 November 2011, who attests to the applicant's moral character and religious practices.

   b.  Nancy T---, Vice President, Brannen's Inc., Fasteners for Industry, San Antonio, TX, dated 1 December 2011, who states the applicant worked for the company for more than 20 years and proved to be honest and conscientious with a great work ethic despite suffering from a hip problem.

   c.  Captain Johnny R. G-----, Emergency Services, Nurse Manager, Mike O'Callaghan Federal Hospital, Nellis Air Force Base, NV, dated 2 December 2011, who states that he has known the applicant more than 22 years and he is a man of integrity, loyalty, and humility.

   d.  Daniel D------, Senior Special Agent/K9 Handler, BNSF Railway, El Paso, TX, dated 7 December 2011, who states that he has known the applicant more than 17 years and he is hard-working and trustworthy.  He adds that hip surgery has challenged the applicant emotionally and financially.  (The letter supports the applicant's application for disability benefits.)

   e.  Dwayne C----, dated 12 December 2011, a friend and neighbor of the applicant for more than 20 years, who attests to his exemplary character.

   f.  Lorenzo J------, Sr., dated 20 December 2011, uncle and god-father of the applicant, who has known him for more than 50 years.  He describes the applicant's positive development as a child in a loving family, the applicant's admiration of other relatives who served in the United States military, and his post-service commitment to family life and the community.

   g.  Lorenzo J------, Jr., undated, cousin of the applicant, who has known him since they were both young.  He describes the applicant's compassionate and caring character as a boy.  He states the applicant entered the Army to serve as an airborne infantryman and regrets what happened during his military service. He adds the applicant is well-known and respected in the community.

   h.  Art F------, Mayor, Town of Anthony, TX, dated 20 January 2012, who states he knows the applicant as a former resident of the town and that the applicant and his family were good citizens and outstanding community members.  He recommends the applicant and his family in any endeavor.

10.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is 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.

11.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 his BCD should be upgraded based on his post-service conduct.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.


3.  The evidence of record shows that during his period of service the applicant was convicted of four serious offenses at an SPCM.  Thus, the applicant's character of service during the period of service under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  Based on the evidence of record, it is concluded that the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  The applicant's contentions and the evidence he provides in support of his post-service conduct were considered.  However, his post-service conduct is insufficient as a basis for upgrading his discharge.

6.  Therefore, in view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130016761



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ABCMR Record of Proceedings (cont)                                         AR20130016761



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