IN THE CASE OF:	  

		BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150002715 


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:

* he would like to apologize for his behavior while serving in the U.S. Army
* he was a very young man at the time and acknowledges that what he did was wrong
* he loves the United States and humbly requests a discharge upgrade
* he learned a very valuable lesson

3.  The applicant provides no 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 enlisted in the Regular Army on 18 September 1986.

3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 12 August 1987 for using marijuana sometime prior to the submission of a urine sample on 7 July 1987.

4.  On 15 November 1988, the applicant appeared before a special court-martial hearing in Mainz, Federal Republic of Germany, where:

	a.  he was charged with three specifications of violating Article 112a of the UCMJ, two for the distribution of marijuana and one for the use of marijuana;

	b.  he was charged with one specification of violating Article 92 of the UCMJ for the violation of a lawful regulation by wrongfully selling rationed cigarettes to a person not authorized to receive them; and

	c.  he was found guilty of violating Article 80 in lieu of Article 112a of the UCMJ for the attempted distribution of marijuana, the use of marijuana, and the violation of Article 92 of the UCMJ for selling rationed cigarettes to someone unauthorized to receive them.

5.  Headquarters, 8th Infantry Division (Mechanized), Special Court-Martial Order Number 9, dated 19 January 1989, shows the court sentenced him to reduction to the rank/grade of private (PV1)/E-1, forfeiture of $447.00 pay per month for 5 months, confinement for 5 months, and receipt of a bad conduct discharge.  The convening authority approved his sentence of reduction to the rank/grade of PV1/E-1, forfeiture of $447.00 pay per month for 5 months, confinement for 5 months, and issuance of a bad conduct discharge.

6.  A Report of Mental Status Evaluation, dated 16 February 1989, shows the applicant’s behavior was normal, he was fully alert and oriented, his mood was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  He was determined to have the mental capacity to understand and participate in the proceedings, to be mentally responsible, and to meet the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness).

7.  On 3 March 1989, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial.  U.S. Army Correctional Activity Special Court-Martial Order Number 67, dated 30 May 1989, shows that after completion of all required post-trial and appellate reviews, the forfeiture of money, and reduction in rank, as ordered by Headquarters, 8th Infantry Division, Special Court-Martial Order Number 9, dated 19 January 1989, having been complied with, the bad conduct discharge would be executed.

8.  On 8 June 1989, he was discharged accordingly.  His DD Form 214 shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with a bad conduct discharge.  He completed a total of 2 years, 4 months, and 19 days of net active service with 122 days of lost time due to military confinement.

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

10.  Army Regulation 635-200 sets forth the basic authority 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 3-10 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It provides that a Soldier 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.

11.  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 applicant was given a bad conduct discharge pursuant to an approved sentence by a special court-martial that was warranted by the gravity of the offenses with which he was charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence was ordered duly executed.

2.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board 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.  The evidence does not support clemency in this case.

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 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)                                         AR20150002715



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ABCMR Record of Proceedings (cont)                                         AR20150002715



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