IN THE CASE OF:	

		BOARD DATE:	    21 August 2014

		DOCKET NUMBER:  AR20140000897 


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.  He understands that he did something wrong, but at the time he was young and going through a hardship.

	b.  His father had died and he felt he had lost everything.

	c.  He was already stressed with life in the military and the possibility of dealing with post-traumatic stress disorder.

	d.  He did not know how to get help and he lost control.  Additionally, he believed he did not have a reason to live. 

	e.  He served his country with dignity and honor for 8 years and 4 months and the time he served should account for some consideration.

3.  The applicant did not provide additional 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 was born on 12 October 1957.  He enlisted in the Regular Army on 16 August 1977.  On 21 February 1980, he reenlisted for a period of 3 years.  He executed extensions to his enlistment on 29 July 1982 and on 7 October 1983.  

3.  He accepted nonjudicial punishment on:

* 16 January 1985, for driving while drunk and for not having a valid driver's license
* 2 March 1985, for being absent from his place of duty

4.  On 19 July 1985, he was found guilty by a general court-martial of wrongful possession of 78.85 grams of marijuana in the hashish form, a scheduled I controlled substance, with the intent to distribute the said controlled substance.  His sentence consisted of reduction to the rank/grade of private/E-1, a forfeiture of all pay and allowances, confinement for 15 months, and to be dishonorably discharged from the U.S. Army.  

5.  On 14 January 1986, the U.S. Army Court of Military Review affirmed the findings and the sentence.

6.  On 7 May 1986, the sentence having been affirmed and the provisions of Article 71(c) having been complied with, a bad conduct discharge was ordered executed.

7.  Accordingly, on 23 May 1986, he was discharged as a result of a court-martial with a bad conduct discharge.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 would 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.

9.  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 request for an upgrade of his bad conduct discharge was carefully considered.

2.  He contends that he was young; however, age is not a mitigating factor for his behavior.  He had served more than 7 years without incident which shows he was mature enough to serve.  Additionally, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The trial by court-martial was warranted by the gravity of the offense charged. His conviction and discharge were effected in accordance with applicable laws and regulations and the final discharge appropriately characterized the misconduct for which he was convicted.  

4.  Based on his serious misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.
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)                                         AR20140000897



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000897



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1