AR20150009583

IN THE CASE OF:

BOARD DATE: 26 April 2016

DOCKET NUMBER: AR20150009583

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

____X___ ____X___ ____X___ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 26 April 2016

DOCKET NUMBER: AR20150009583

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.

IN THE CASE OF:

BOARD DATE: 26 April 2016

DOCKET NUMBER: AR20150009583

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 an honorable discharge.

2. The applicant states he was young and stupid and made a mistake that he would now like to rectify.

3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DA Form 2-2 (Insert Sheet to DA Form 2-1 Record of Court-Martial Conviction).

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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. On 7 October 1980, the applicant enlisted in the Regular Army.

3. On 30 June 1982, he was promoted to the rank/pay grade of private first class/E-3.

4. On 10 March 1983, before a special court-martial at Aschaffenburg, Germany, he was convicted of violating Article 134 of the Uniform Code of Military Justice (UCMJ) for
* wrongfully possessing 1.24 grams or more of marijuana in the hashish form on or about 12 January 1983.
* wrongfully distributing 3.62 grams or more of marijuana in the hashish form on or about 15 January 1983.

5. He was sentenced to reduction to the lowest enlisted grade, forfeiture of pay per month for three months, confinement at hard labor for 75 days, and separation with a bad conduct discharge.

6. The convening authority approved his sentence on 8 April 1983 and ordered that the record of trial be forwarded to The Judge Advocate General of the Army for review by the U.S.Army Court of Military Review.

7. Effective 2 May 1983, the applicant was placed in an involuntary leave status and the unexecuted portion of his approved sentence to confinement at hard labor was remitted.

8. On 15 September 1983, the U.S.Army Court of Military Review affirmed the approved findings of guilty and the sentence.

9. Special Court-Martial Order Number 827, issued by the U.S. Army Correctional Activity, Fort Riley, Kansas on 20 December 1983, shows the bad conduct discharge was ordered duly executed.

10. On 9 January 1984, the applicant was discharged pursuant to his court-martial. The DDForm214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 3, section IV, as a result of court-martial with a bad conduct character of service.

REFERENCES:

1. 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 3-11 of the regulation in effect at the time provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must have been completed and the affirmed sentence ordered duly executed.

2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title10, U.S.Code, section1552, 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:

1. The evidence of record shows the applicant was convicted by a special court-martial for wrongfully distributing marijuana.

2. He was given a bad conduct discharge pursuant to an approved sentence by a special court-martial, which was warranted by the gravity of the offense charged at the time. 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 ordered duly executed.

3. 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.

4. The applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. In view of the foregoing, there is an insufficient basis for granting clemency in this case.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009583

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009583

4

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2