IN THE CASE OF:	  

		BOARD DATE:	  18 November 2014

		DOCKET NUMBER:  AR20140005173 


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 the process of the law was denied to him.  At the young age of 19, he did not understand the ramifications of the law when he decided to accept the bad conduct discharge. He is trying to change his life and become a productive citizen.

3.  The applicant does not provide any 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 in September 1963.  He enlisted in the Regular Army on 17 November 1981.  He was 18 years of age at the time.  He was trained in and held military occupational specialty 05B (Radio Operator). 

3.  He served in Germany from 12 May 1982 to 19 April 1983.  He was awarded or authorized the Army Service Ribbon and the Expert Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 

4.  On 1 April 1983, he was arraigned and tried at a special court-martial at Headquarters, 1st Armored Division, Germany, for Charge 1, violating Article 134 of the Uniform Code of Military Justice as follows: 

* specification 1, wrongfully distributing marijuana on or about the third week of October 1982
* specification 2, wrongfully possessing marijuana on or about the third week of October 1982
* specification 3, wrongfully distributing marijuana on or about the second week of October 1982
* specification 4, wrongfully possessing marijuana on or about the second week of October 1982

5.  Prior to the formal announcement of the findings, the military judge granted a motion to withdraw specifications 2 and 4 of the charge and specification 3 was renumbered as specification 2.  

6.  Consistent with his pleas to the charge and its specifications, the court found him guilty of the charge and specifications.  The court sentenced him to a bad conduct discharge. 

7.  On 21 June 1983, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

8.  Headquarters, U.S. Army Artillery Center, Fort Sill, OK, Special Court-Martial Order Number 41, dated 25 April 1984, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

9.  The applicant was discharged on 11 May 1984.  His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial in accordance with Army Regulation 635-200 (Enlisted Personnel Separations), chapter 3, with a bad conduct discharge.  This form further shows he completed 2 years, 5 months, and 11 days of creditable active military service.

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 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.

11.  Army Regulation 635-200, 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.

12.  Army Regulation 635-200, 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.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this 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.

2.  The applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He provides no evidence that he was denied due process.

3.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence was ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.
4.  The applicant was 18 years of age at the time of his enlistment and nearly 20 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

5.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  He is not entitled to an upgrade of his bad conduct 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)                                         AR20140005173





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ABCMR Record of Proceedings (cont)                                         AR20140005173



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