IN THE CASE OF:  	  

		BOARD DATE:  5 May 2015	  

		DOCKET NUMBER:  AR20140015936 


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 does not believe there was an error or an injustice for his felony conviction in 1982.  He would just like to be considered for an upgrade of this bad conduct discharge.  He is trying to clear up some wreckage from the past, for employment purposes.  He had some shortcomings in his life, but he has since positively reinforced his life and he is a better person. 

3.  The applicant provides a letter of recommendation and multiple certificates. 

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 records show he enlisted in the Regular Army on 20 September 1979.  He was trained in and held military occupational specialty 76Y (Unit Supply Specialist). 

3.  His records also show he served in Hawaii from 4 January 1980 through 9 September 1981.  He was awarded the Army Service Ribbon and Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 

4.  On 10 September 1981, he pled guilty at and was convicted by a general court-martial of one specification of

* wrongfully possessing cocaine, on 1 May 1981
* wrongfully selling cocaine, on 1 May 1981
* wrongfully possessing marijuana, on 1 May 1981
* wrongfully selling marijuana, on 1 May 1981
* wrongfully possessing cocaine, on 14 May 1981
* wrongfully selling cocaine, on 14 May 1981
* wrongfully possessing LSD, on 1 June 1981

5.  The court sentenced him to a bad conduct discharge, confinement at hard labor for 18 months, reduction to private/E-1, and a forfeiture of $400 pay for 
18 months.  

6.  On 15 October 1981, the convening authority approved the sentence, and except for that part of 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.

7.  On 18 February 1982, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  There is no evidence he petitioned the U.S. Court of Military Appeals for a grant of review.

9.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 695, dated 14 September 1982, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

10.  The applicant was discharged from the Army on 29 October 1982.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Enlisted Personnel Separations), as a result of court-martial.  This form further shows his character of service as bad conduct.  He completed 1 year, 11 months, and 20 days of creditable military service and he had lost time from 10 September 1981 to 29 October 1982.

11.  He submitted: 

	a.  A letter of recommendation, dated 28 August 2014, from an official at the Colorado Department of Corrections.  This official states the applicant has been a volunteer for the Alcoholics Anonymous program at the correctional facility since June 2008.  He is always prompt and courteous.

	b.  Multiple certificates showing completion of addiction counseling skills, preventing infectious disease in alcohol and drug treatment settings, client records management, ethical issues in the alcohol and drug treatment setting, and principles of addiction treatment. 

12.  Army Regulation 635-200 provides for the following characters of service: 

	a.  Paragraph 3-7a states 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 states 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.

13.  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 evidence of record shows his trial by a general court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted. 

2.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  The fact that he is now trying to clear up some shortcomings from the past does not negate the fact that he was convicted by court-martial of some serious offenses.  

4.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20140015936



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ABCMR Record of Proceedings (cont)                                         AR20140015936



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