IN THE CASE OF: BOARD DATE: 18 April 2012 DOCKET NUMBER: AR20110019983 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 upgrade of his bad conduct discharge (BCD). 2. He states: a. his roommate was arrested for selling drugs to an undercover agent. Since he was the ranking member in the room, he was added to the indictment. b. the evidence was lost at the trial and the informant was absent without leave. However, they proceeded with the case. c. he was awaiting orders for reenlistment from the Finance Office in Germany so he could meet up with and marry his fiancé. d. he has never been in any trouble prior to or after this incident and he truly feels this was a bad injustice to his life because there is no evidence or witness against him. e. he enlisted for three years. A new officer came in and wanted to evaluate members that were about to reenlist. He feels this officer had no right since he was in the unit for three years. 3. He provides no additional documents. 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 31 July 1975 for a period of three years. He completed basic and advanced individual training and was awarded military occupational specialty 13B (Field Artillery Crewman). 3. On 26 October 1977, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for disobeying a lawful order from his superior noncommissioned officer. 4. On 23 March 1979, he was found guilty pursuant to his pleas by a special court-martial of wrongfully transferring marijuana and wrongfully possessing marijuana. He was sentenced to reduction to private/E-1, forfeiture of $275.00 pay per month for 6 months, confinement at hard labor for 4 months, and to be discharged from the service with a BCD. 5. On 24 April 1979, the convening authority approved the sentence. The forfeitures were applied to all pay and allowances becoming due on and after the date of this action. The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. 6. On an unknown date, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 7. Special Court-Martial Order Number 375, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 1 December 1980, shows the BCD was ordered to be executed. 8. He was discharged on 22 January 1981 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 11-2, as a result of court-martial, other. He completed a total of 5 years, 2 months, and 18 days of creditable active service with 96 days of lost time. 9. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Paragraph 3-11 of this regulation states that a Soldier will be given a BCD 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. 10. 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. 11. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 12. 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 service record is void of evidence and he has not provided any evidence which support his contentions regarding his trial by court-martial. 2. The applicant's trial by court-martial was warranted by the gravity of the offenses charged. The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 3. His service record shows he received one Article 15 and was convicted by a special court-martial. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, his record of service is insufficiently meritorious to warrant an honorable or general discharge. 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) AR20110019983 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110019983 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1