IN THE CASE OF:	   

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140004931 


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 that his bad conduct discharge (BCD) be upgraded to at least a general discharge.

2.  The applicant states, in effect, that he deserves an upgrade of his BCD because the punishment he received for small amounts of marijuana was too severe when considering his overall record of service and the fact that he had a previous honorable discharge.  His discharge was inequitable when compared to his honest, faithful, and meritorious service from 1978 to 1985 and the fact that he was awarded the Army Achievement Medal, two awards of the Army Good Conduct Medal, and the Noncommissioned Officer Professional Development Ribbon.  The Board should take into consideration that he was young and immature and was alone, because his wife and child had returned to the States and he was guilty of poor judgment for which he has paid the punishment.  Since his discharge he has not had any legal issues and has been employed by the city and county of San Francisco as a train operator since 1999.  

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his court-martial order.

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's military records are not available for review.  However, the documents provided by the applicant are sufficient to conduct a fair and impartial review of this case.

3.  After serving 5 years, 10 months, and 20 days of active service he reenlisted in the Regular Army on 31 May 1983.

4.  On 9 July 1986, the applicant was convicted pursuant to his pleas by a general court-martial of three specifications of the wrongful distribution of marijuana.  He was sentenced to confinement for 2 years, reduction to the pay grade of E-4, forfeiture of all pay and allowances, and a BCD.  He was transferred to the U.S. Army Correctional Activity at Fort Riley, Kansas to serve his confinement.  He was over 28 years of age at the time of his conviction.

5.  On 2 June 1987, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He completed 8 years, 10 months, and 24 days of total active service and had 322 days of lost time due to confinement.  

6.  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.

7.  Army Regulation 635-200 (Personnel Separations Enlisted Personnel) governs the policies and procedures 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the repeated and serious nature of his offenses and his otherwise undistinguished record of service.

2.  Trial by court-martial was warranted by the gravity of the offenses 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.  Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.

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)                                         AR20140004931





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ABCMR Record of Proceedings (cont)                                         AR20140004931



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