IN THE CASE OF:	  

		BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130018208 


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 an honorable discharge (HD).

2.  The applicant states:

* He was punished for his bad conduct and he was not allowed to stay in the military
* He served his time in a military corrections facility
* One part of his case was dismissed, but he had already served the time
* He was an expert in the rifle and hand grenade and he received an Army Service Ribbon
* It has been almost 28 years since his court-martial
* He has made positive turns in his life and he has become a respectable and productive citizen
* He now knows the decisions he made in the past were immature and not thought through very well

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 enlisted in the Regular Army in pay grade E-1 on 28 January 1982.  He completed training as a power generator and wheel vehicle mechanic. He was advanced to pay grade E-2 on 28 July 1982 and he was advanced to pay grade E-3 on 21 September 1982.

3.  On 29 September 1983, the applicant was convicted pursuant to his pleas by a general court-martial of the following four specifications:

* Possession of about 5.73 grams of marijuana
* Distribution of about 5.73 grams of marijuana
* Possession of about 68.15 grams of marijuana
* Distribution of about 68.15 grams of marijuana

4.  He was sentenced to a BCD, confinement at hard labor for 2 years, forfeiture of all pay and allowances, and reduction to pay grade E-1.

5.  The convening authority approved the sentence as adjudged and the record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review.  Pending completion of appellate review the applicant was confined in the Installation Detention Facility at Fort Hood, TX.

6.  The U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact, and affirmed the findings of guilty and the sentence.

7.  U.S. Army Correctional Activity General Court-Martial Orders Number 421 dated 26 September 1984 show that the two possession of marijuana specifications were set aside and were dismissed.  It further shows that the remaining findings of guilty and the sentence were affirmed and, Article 71(c) having been complied with, the sentence was ordered to be executed.

8.  On 2 April 1985, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a general court-martial conviction.  He completed 1 year, 7 months, and 24 days of net active service during this period and he received a BCD.

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

   a.  Paragraph 3-11 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

   b.  Paragraph 3-7a provides that an HD 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 (GD) 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 HD.

10.  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 Army Board for Correction of Military Records 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.  Pursuant to his pleas and as amended by the court, the applicant was convicted by a general court-martial of two specifications of distributing marijuana.  He was discharged as a result of a duly-reviewed and affirmed general court-martial conviction.  He has not provided any evidence to show the character of service he received was in error or unjust.  Therefore, there is no basis for granting the applicant an HD or a GD.

2.  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 therefore 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 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)                                         AR20130018208



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ABCMR Record of Proceedings (cont)                                         AR20130018208



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