IN THE CASE OF:
BOARD DATE: 19 February 2015
DOCKET NUMBER: AR20140010625
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 a more favorable discharge.
2. The applicant states that he was very young at the time and did not realize how bad it would hurt him.
3. The applicant provides no additional documents with his application.
CONSIDERATION OF EVIDENCE:
1. On 27 January 1982, the applicant enlisted in the Regular Army for a period of 3 years, training as an infantryman, and assignment to Korea. He completed his one-station unit training at Fort Benning, Georgia and he was transferred to Korea on 17 May 1982.
2. On 18 June 1982, nonjudicial punishment was imposed against him for the wrongful use of a controlled substance.
3. On 18 June 1983, the applicant was convicted by a special court-martial of the wrongful possession of marijuana, breaking restriction, wrongful possession of drug paraphernalia, being absent without leave (AWOL) from 7 to 28 April 1983, 5 to 14 May 1983, and missing movement. He was sentenced to a reduction to the pay grade of E-1 and a BCD.
4. Special Court-Martial Order Number 24, issued by Headquarters, U.S. Army Training Center and Fort Dix, dated 8 February 1984, announced that the applicants sentence as approved by the convening authority had been affirmed pursuant to Article 86 and directed that his BCD be duly executed.
5. On 29 February 1984, the applicant was discharged pursuant to a duly-affirmed court-martial conviction. He had served 2 years and 14 days of active service and he had 40 days of lost time due to being AWOL.
6. There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards
15-year statute of limitations.
7. The applicant is currently incarcerated in the custody of the Pennsylvania Department of Corrections.
8. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel.
a. 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.
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.
c. 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. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with the applicable law and regulation and the discharge appropriately characterizes the misconduct for which the applicant was convicted. Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.
2. The applicants contentions have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offenses.
3. Accordingly, his sentence 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) AR20140010625
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ABCMR Record of Proceedings (cont) AR20140010625
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