IN THE CASE OF:  	  

		BOARD DATE:  16 December 2014	  

		DOCKET NUMBER:  AR20140007339 


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 upgrade of his bad conduct discharge to a general, under honorable conditions discharge.

2.  The applicant states that, as a condition of a plea agreement, he pled guilty and received a bad conduct discharge in lieu of trial by court-martial.  A stipulation of the plea agreement was that his discharge would be upgraded to general, under honorable conditions; however, that action has not occurred.

   a.  He had two periods of honorable service prior to the period of service in question, which demonstrates his pattern of honorable service.

   b.  He adds that he was convicted of a single incident that is not indicative of his overall performance and character of service.

3.  The applicant provides copies of his three separation documents.

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 (RA) on 29 November 1974 for a period of 3 years.  He was awarded military occupational specialty 94B (Food Service Specialist).  He served overseas in Germany from 21 June 1979 to 
20 June 1982.

3.  A DD Form 214 (Report of Separation from Active Duty) shows he entered active duty this period on 29 November 1974 and was honorably discharged on 
9 November 1977 to reenlist in the RA.  He had completed 2 years, 11 months, and 11 days of net active duty service this period.

4.  He reenlisted in the RA on 10 November 1977 for a period of 3 years.

5.  A National Archives (NA) Form 13038 (Certification of Military Service) shows the applicant was a member of the U.S. Army from 10 November 1977 to 5 May 1982 and that his service was terminated by honorable discharge.

6.  The applicant reenlisted in the RA on 6 May 1982 for a period of 3 years.  He was promoted to the rank of specialist five/pay grade E-5 on 4 August 1982.

7.  The applicant was tried by a general court-martial.

   a.  He plead guilty to the charge and specifications, and he was found guilty of, on 12 August 1983  –

* wrongfully having in his possession about 120 grams of marijuana (the possession of marijuana was part of a sale of marijuana to another service member)
* wrongfully distributing about 120 grams of marijuana (the distribution of marijuana was a sale of marijuana to another service member)

	b.  He was sentenced to a bad conduct discharge, to forfeit all pay and allowances, to be reduced to the grade of private (E-1), and to be confined at hard labor for 18 months.

   c.  On 6 March 1984, the General Court-Martial Convening Authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for six (6) months, total forfeitures, and reduction to the grade of private (E-1).
8.  On 10 July 1984, the U.S. Army Court of Military Review (CMR) reviewed the applicant's case.

   a.  The CMR agreed with the applicant's contention that his convictions for the simultaneous possession charge (specification 1 of the charge) and distribution of marijuana were multiplicious for findings purposes.  The CMR was satisfied the applicant had suffered no prejudice as to the sentence.

   b.  The CMR also considered the issue personally raised by the applicant and briefed by his counsel relating to sentence appropriateness and found it to be without merit.

   c.  The finding of guilty of specification 1 of the charge was set aside and dismissed.  The CMR affirmed the remaining findings of guilty and the sentence.
   
9.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 477, dated 22 October 1984, promulgated the CMR findings, confirmed the remaining findings of guilty, and the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 6 May 1982 and he was separated on 1 November 1984 with a bad conduct discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial.  He was credited with 2 years and 20 days of net active service this period.

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

   a.  Chapter 3 provides that a member will be given a dishonorable or 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 executed.

	b.  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.


12.  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 that his bad conduct discharge should be upgraded to a general, under honorable conditions discharge because it was to be upgraded as a condition of his plea agreement and he had two periods of honorable service prior to the period of service under review.

2.  The applicant's two prior periods of active duty service (from 29 November 1974 through 9 November 1977 and from 10 November 1977 through 5 May 1982) are acknowledged and not in dispute.  Moreover, the evidence of record shows the two periods of honorable active duty service are appropriately recorded and documented in his military service record.

3.  The applicant's trial by general court-martial was warranted by the gravity of the offense 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.

4.  There is no evidence of record that shows the character of the applicant's discharge was to be upgraded based upon a plea agreement.  In fact, the evidence of record shows the CMR considered the issue raised by the applicant (and briefed by his counsel) relating to the appropriateness of his sentence and the CMR found it to be without merit.

5.  The evidence of record shows that, approximately 15 months after he reenlisted in the RA (on 6 May 1982), the applicant committed an offense for which he was convicted by general court-martial.  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general, under honorable conditions discharge.

6.  Therefore, it is concluded that his service was appropriately characterized based upon the behavior that led to his punitive discharge and not by his overall record of service.

7.  In view of the foregoing, there is no basis for granting the applicant's request.
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)                                         AR20140007339



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ABCMR Record of Proceedings (cont)                                         AR20140007339



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