IN THE CASE OF: BOARD DATE: 24 July 2012 DOCKET NUMBER: AR20120002006 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 honorable. 2. The applicant states he served his country honorably from 1980 until he made one mistake in “1984.” He believes his honorable service should be recognized and his discharge should be upgraded. 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. On 14 March 1980, the applicant enlisted in the Regular Army following prior active and inactive service in the U.S. Army Reserve. The highest rank/pay grade he achieved while serving on active duty was specialist four/E-4. 3. On 3 August 1980 following completion of training, he was assigned to Company E, 1st Battalion, Infantry Training Brigade, U.S. Army Training Center and Fort Benning, Fort Benning, GA. On 4 October 1981, he was reassigned to Company D, 1st Battalion, Infantry Training Brigade, U.S. Army Training Center and Fort Benning. 4. On 27 January 1983, the applicant was convicted by a special court-martial of violating Article 134 of the Uniform Code of Military Justice on or about 23 August 1982 by wrongfully having 5 grams of marijuana, more or less, in his possession; wrongfully selling marijuana; and wrongfully transferring marijuana. He was sentenced to reduction to pay grade E-1, confinement at hard labor for 3 months, forfeiture of $100.00 pay per month for 3 months, and a bad conduct discharge. The record of trial was forwarded for review by a Court of Military Review. He was confined in the Installation Confinement Facility, Fort Benning, pending completion of the appellate review. 5. Headquarters, U.S. Army Infantry Center and Fort Benning, Special Court-Martial Order Number 111, dated 17 October 1983, shows the applicant's approved sentence to reduction to pay grade E-1, confinement at hard labor for 3 months, forfeiture of $100.00 pay per month for 3 months, and discharge from the service with a bad conduct discharge had been affirmed. That portion of the sentence pertaining to confinement had been served. 6. On 27 October 1983, the applicant was discharged with a bad conduct discharge as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 4 months, and 26 days of active service during this period and 4 months and 3 days of prior active service. His authorized awards included only the Army Service Ribbon and Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 7. His records show no significant acts of achievement or special recognition. 8. Army Regulation 635-200, paragraph 3-11, 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. 9. 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. 10. 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. 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's contentions that his honorable service from 1980 until he made one mistake in ‘1984” should be recognized and that his discharge should therefore be upgraded were carefully considered and determined to lack merit. 2. The applicant was convicted by a special court-martial of three specifications of violating Article 134 of the Uniform Code of Military Justice on or about 23 August 1982: wrongfully having 5 grams of marijuana, more or less, in his possession; wrongfully selling marijuana; and wrongfully transferring marijuana. Prior to this incident he had completed less than 2 1/2 years of service with no record of any significant acts of achievement or special recognition. 3. The applicant's trial by court-martial was warranted by the gravity of the offenses charged. His conviction, sentence, and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 4. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate. 5. In view of the foregoing, he is not entitled to an upgrade of his discharge to honorable or general under honorable conditions. 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) AR20120002006 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120002006 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1