RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2008 DOCKET NUMBER: AR20080002938 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Director Analyst The following members, a quorum, were present: Chairperson Member Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his bad conduct discharge be upgraded to an honorable discharge. 2. The applicant states that the crime he committed was not treason and was not of a national security interest. Therefore, the offenses for which he was charged did not qualify under the Uniform Code of Military Justice (UCMJ) for a bad conduct discharge. 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 9 March 1984. 3. On 25 July 1985, the applicant accepted nonjudicial punishment under Article 15, UCMJ for unlawfully drawing ten checks, totaling $1,100.00, upon the Post Exchange knowing he did not have sufficient funds for the payment of the checks. 4. On 14 January 1986, the applicant was convicted, contrary to his pleas, by a special court-martial of violating Article 112a by wrongfully possessing 2.13 grams of marijuana in the hashish form; wrongfully possessing 8.929 grams of cocaine with intent to distribute; and of violating Article 92 by wrongfully possessing a switchblade knife in violation of a lawful general regulation. He was sentenced to forfeit $425.00 pay per month for 3 months, to be reduced to pay grade E-1, to be confined for 3 months, and to be discharged with a bad conduct discharge. 5. On 28 August 1986, after considering two allegations of prejudicial error concerning whether the knife was a switchblade or a stiletto and whether the staff judge advocate provided ambiguous advice concerning the recommended sentence regarding the forfeitures, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence. 6. On 22 February 1988, the applicant was discharged, pursuant to his sentence by court-martial, with a bad conduct discharge. 7. The Manual for Courts-Martial, United States, provides, for violations of Article 112a (wrongful possession of less than 30 grams of marijuana), a maximum punishment of a dishonorable or bad conduct discharge, 2 years confinement, and total forfeitures; for violations of Article 112a (wrongful possession of cocaine with intent to distribute) a maximum punishment of a dishonorable or bad conduct discharge, 15 years confinement, and total forfeitures; and for violations of Article 92 (failure to obey a regulation) a maximum punishment of a dishonorable or bad conduct discharge, 2 years confinement, and total forfeitures. Since the applicant was tried by a special court-martial, the maximum punishment that could have been imposed by the court for the offenses combined would have been a forfeiture of two-thirds pay per month for six months, confinement for six months, a reduction to E-1, and a bad conduct discharge. 8. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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. Contrary to the applicant’s contentions, the offenses for which he was convicted were punishable under the UCMJ. The maximum punishment he could have received could have been much harsher than the punishment actually imposed. 2. Trial by court-martial was warranted by the gravity of the offense charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __xxx____ __xxx___ __xxx___ 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. __xxxxxxxxxxx____ CHAIRPERSON ABCMR Record of Proceedings (cont) AR20080002938 4 DEPARTMENT OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 1901 SOUTH BELL STREET 2ND FLOOR ARLINGTON, VA 22202-4508