BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140019421 


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 policy in place at the time of zero tolerance for drug distribution was unfair and unjust.  One sale of a small amount of drugs should not negate 3 years of honorable service.  The policy of zero tolerance was changed in 1985, shortly after his discharge, and he could have been treated or retrained. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 on 26 July 1979 and he held military occupational specialty 94B (Food Service Specialist).  On 17 December 1979, he was assigned to Battery C, 2nd Battalion, 6th Field Artillery, Germany.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 6 March 1980, for one specification of being derelict in the performance of his duties by negligently failing to secure his weapon
* 6 January 1981, for one specification of being derelict in the performance of his duties by willfully failing to prepare the outside area of the mess tent 

4.  On 16 March 1981, a Bar to Reenlistment Certificate was placed against the applicant.  His immediate commander cited the two Article 15s he received and stated he had not yet learned the meaning of discipline and obeying orders.  He had a tendency to do as he felt, not what he was told.  He was extremely immature and at times presented a discipline problem to the chain of command.  Until he learned and understood that orders were made to be obeyed, not broken when not agreed with, he (the commander) did not feel he should be given the privilege of reenlisting in the Army. 

5.  On 19 June 1981, he received NJP under the provisions of Article 15, UCMJ, for one specification each of:

* wrongfully using provoking words towards a specialist five (SP5)
* being disrespectful in language towards a noncommissioned officer (NCO) in the execution of his duties

6.  On 8 February 1982, he was convicted by a special court-martial of:

* two specifications of wrongfully selling marijuana in the hashish form while in a foreign country
* one specification of wrongfully transferring marijuana in the hashish form while in a foreign country 

7.  He was sentenced to reduction to private/E-1, confinement for 3 months, forfeiture of $250 per month for 3 months, and a bad conduct discharge.  He was subsequently confined at the U.S. Army Personnel Control Facility (PCF), Fort Dix, NJ.  On 28 May 1982, the sentence was approved.  On 18 June 1982, he was placed on excess leave while awaiting the appellate review.


8.  Special Court-Martial Order Number 28, dated 11 February 1983, issued by the U.S. Army Training Center and Fort Dix, shows the applicant's conviction and sentence were affirmed and the convening authority ordered his bad conduct discharge executed.  On 13 May 1983, he was discharged accordingly.

9.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, by reason of court-martial, with a bad conduct discharge.  He completed 3 years, 7 months, and 4 days of net active service of which 326 days (10 months and 26 days) was excess leave and he had 74 days (2 months and 14 days) of lost time due to being in confinement.

10.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  The version of the regulation in effect at the time prescribed the policies and procedures for separating members with a bad conduct discharge.  It stipulated 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 was ordered duly executed.

12.  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.

13.  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.

14.  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 confirms the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted. 

2.  Notwithstanding his contention that the Army changed the policy of zero tolerance, the Army currently has, and always has had, a zero tolerance for Soldiers possessing, using, or selling illegal drugs.  In addition, he could have raised the claim that selling small amounts of illegal drugs in a foreign country didn't warrant a court-martial conviction as an issue to be considered in mitigation during the court-martial and/or appellate process.

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

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  His misconduct rendered his service unsatisfactory and did not meet the criteria for any characterization of service other than the one he received.  Therefore, he is not entitled to the requested relief.

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)                                         AR20140019421





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ABCMR Record of Proceedings (cont)                                         AR20140019421



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