IN THE CASE OF:	 

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150002750 


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 to a general discharge.  

2.  The applicant states:

* he was under heavy family and financial hardship and mistakenly sold drugs to make ends meet 
* he is not proud of his actions but he wanted to support his family; the money he was receiving from the military was not enough

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 enlisted in the Regular Army on 31 August 1977.  Initially, he was trained in and held military occupational specialty (MOS) 13B (Cannon Crewmember).

3.  He served in Germany from 24 August 1978 to 17 May 1979 and from 25 April 1982 to 15 July 1984.  He reenlisted on 3 March 1981.  On 8 December 1981, he was awarded MOS 91A (Medical Specialist).  He was also awarded or authorized the Good Conduct Medal, Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  On 16 July 1984, he was arraigned and tried at a general court-martial at Headquarters, 2nd Armored Division for violating the Uniform Code of Military Justice.  He was convicted of the charge and specification of wrongfully distributing marijuana on approximately 20 different occasions.  

5.  The court sentenced him to a reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement at hard labor for 4 years, and a dishonorable discharge. 

6.  On 8 August 1984, the convening authority approved only so much of the sentence as provided for a forfeiture of all pay and allowances, confinement at hard labor for 5 months, reduction to E-1, and a bad conduct discharge, 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.

7.  On 29 October 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 

8.  There is no indication he petitioned the U.S. Court of Military Appeals for a grant of review with respect to any matters of law. 

9.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 632, dated 10 December 1984 shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

10.  The applicant was discharged on 14 January 1985.  His DD Form 214 (Certificate of Release or 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 – Enlisted Personnel), chapter 3, with a bad conduct discharge.  This form further shows he completed 7 years and 8 days of creditable active military service with lost time from 16 July to 19 November 1984. 

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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a general court-martial was warranted by the gravity of the offenses 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.

2.  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 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.

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.  Nothing in his records supports his contention that he experienced financial difficulties at the time or that distributing drugs on multiple occasions was the only available option to alleviate such difficulties. 

5.  His service was not satisfactory and 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.  There is insufficient evidence to grant him 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)                                         AR20150002750



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ABCMR Record of Proceedings (cont)                                         AR20150002750



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