BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20150002383 


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 under other than honorable conditions (i.e., bad conduct) discharge to a general discharge. 

2.  The applicant states:

* He would like to access the Department of Veterans Affairs (VA) benefits 
* He was arrested for possession of 2 grams of hash; this happened prior to drug testing being required
* He was stationed in Germany and access to drugs was easy and most of the Soldiers in his unit were using them
* He and several other unit Soldiers were caught with the drugs; he was punished with 6 months of confinement at Fort Riley
* He was never given a chance to make it right; he was young and he made a mistake; he had served our country for 3 years with a clean record
* He also never had any disciplinary actions and he was never late and followed orders without question 

3.  The applicant does not provide any additional 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's records show he was born in November 1959.  He enlisted in the Regular Army (RA) at 20 years and 3 months of age on 11 March 1980 and he held military occupational specialty 62E (Heavy Construction Equipment Operator).  

3.  On 20 August 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on three separate occasions and being disrespectful to a superior noncommissioned officer. 

4.  He served in Germany from on or about 26 April 1982 to on or about 10 March 1983.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Marksman Marksmanship Qualification Badge with Grenade Bar, and Army Service Ribbon. 

5.  On 6 August 1982, he accepted NJP under the provisions of Article 15, UCMJ, for failing to obey a general regulation by not securing his weapon properly.  

6.  On 11 March 1983, at age 23, he was arraigned and tried at a special court-martial at Headquarters, 3rd Infantry Division, for violating Article 134, UCMJ, consisting of: 

* specification 1, wrongfully possessing marijuana
* specification 2, wrongfully distributing marijuana 

7.  The court found him guilty of specification 2 and not guilty of specification 1.  The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of $250.00 pay per month for 2 months, confinement at hard labor for 2 months, and a bad conduct discharge. 

8.  On 14 April 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.
9.  On 25 April 1983, Special Court-Martial Order Number 225, remitted the unexecuted portion of the approved sentence to confinement at hard labor for 2 months. 

10.  On 23 June 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the approved sentence. 

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

12.  Special Court-Martial Order Number 672, issued by Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, on 2 November 1983, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

13.  The applicant was discharged on 17 November 1983.  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 (Personnel Separations), chapter 11, with a bad conduct discharge.  This form further shows he completed 3 years, 6 months, and 22 days of creditable military service during this period and he had lost time from 11 March to 24 April 1983.  He was assigned a separation code of "JJD." 

14.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

15.  Army Regulation 635-200 provides 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.  Paragraph 3-11 states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

16.  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.

17.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The SPD Code of "JJD" is used when the authority for discharge is Army Regulation 635-200, chapter 11, as a result of a court-martial.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant 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.

2.  His trial by a special court-martial was warranted by the gravity of the offense 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.

3.  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.

4.  The applicant was 20 years of age at the time of his first enlistment and 23 years of age when he was convicted by a court-martial.  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 as evidenced by his multiple instances of NJP and court-martial conviction.  He clearly 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.  

6.  The applicant's desire to access VA benefits is noted.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Unfortunately, after a thorough review of his case, it is clear that he was discharged under the appropriate separation authority, received the appropriate character of service, and he was assigned the appropriate separation code.  In view of the foregoing, he should not receive 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)                                         AR20150002383





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ABCMR Record of Proceedings (cont)                                         AR20150002383



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