IN THE CASE OF: BOARD DATE: 10 November 2015 DOCKET NUMBER: AR20150004117 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 his bad conduct discharge be upgraded to honorable. 2. The applicant states the judge in his case was unfair and abused his discretion. 3. The applicant provides no additional evidence in support of his request. 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 5 March 1980. He completed his initial entry training and was awarded military occupational specialty 36K (Tactical Wire Operations Specialist). Following the completion of his initial entry training, he was reassigned to Fort Hood, Texas. 3. He was promoted to the rank/grade of specialist four/E-4 on 1 August 1981. 4. Before a special court-martial at Fort Hood, Texas on 13 May 1982, he was convicted of two specifications of Charge 1 for violating Article 134 of the Uniform Code of Military Justice (UCMJ). Specifically, he was convicted of wrongfully possessing and selling marijuana on or about 30 November 1981. His sentence included reduction to the lowest enlisted grade and separation with a bad conduct discharge. 5. The convening authority approved his sentence on 8 July 1982 and ordered the forwarding of the record of trial to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. 6. The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence on 14 February 1983. The Court noted the applicant's contention at the time that the judge in his case abused his discretion by not permitting the applicant to present favorable character information. The Court disagreed with his contention. 7. The U.S. Court of Military Appeals denied his petition for review. 8. Special Court-Martial Order Number 33, issued by Headquarters, Fort Hood, Texas on 26 September 1983, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge was ordered duly executed. 9. The applicant was discharged on 7 October 1983, pursuant to his court-martial. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct character of service. 10. The Army Discharge Review Board considered the entirety of his military records and the available evidence and determined he was properly and equitably discharged. He was notified on 3 June 1997 that his petition for an upgrade of his character of service and/or reason for discharge had been denied. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. 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 3-10 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. 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 evidence of record shows the applicant was convicted by a special court-martial for wrongfully possessing and selling 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 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) AR20090019040 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004117 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1