IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150007748 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, in effect, an upgrade of his bad conduct discharge (BCD). 2. The applicant states, in effect, that: a. He was told his discharge status would be upgraded to an honorable discharge after 4 years. b. The U. S. Army Criminal Investigation Command (CID) “railroaded” him into getting them an ounce of “weed” for them. c. He was drinking with some friends and one of the guys (an undercover CID agent) kept pressuring him to get him some “weed”. He kept saying no for 5 weeks, but then he relented and said yes. d. When the applicant met the guy at a camper, he gave the “weed” to him and he paid him for it and then the CID guys appeared all around the camper and the applicant was arrested. e. His life has never been the same since and he was not able to reach his potential all because the military preyed upon him. f. He served his country and received multiple injuries due to his arrest that were documented prior to his discharge. g. His health and mind have since deteriorated due to his treatment by the U.S. Army. h. He has injuries to his left hand, right ankle, and his jaw was messed up during the time his wisdom tooth was pulled by a dental student in the military. 3. The applicant provides a reference letter from a friend whom he had a relationship with at that time, and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States.) 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 7 January 1982, the applicant enlisted in the Regular Army. After completing initial entry training, he was awarded military occupational specialty (MOS) 64C (Motor Transport Operator). 3. The applicant received numerous counseling statements from 29 June 1982 to 13 July 1983 for failures to report to duty. 4. On 16 August 1982, the applicant received nonjudicial punishment (NJP) for dereliction of duty and a general orders violation. 5. On 28 March 1983, he received NJP for failure to obey a lawful order by not registering his privately owned vehicle. 6. On 18 July 1983, the applicant received NJP for failure to go at the time prescribed to his appointed place of duty. 7. On 9 August 1983, he received NJP for failure to go to his place of duty. 8. Special Court-Martial (SPCM) Order Number 31, dated 15 December 1983, shows he was charged and found guilty of wrongfully possessing with intent to distribute 27 grams, more or less, of marijuana. 9. He was sentenced to forfeiture of pay in the amount of $350.00 pay per month for 4 months, to be confined at hard labor for 4 months and to be discharged from service with a BCD. The sentence was approved and, except for the part of the sentence extending to a BCD, confinement at hard labor for 75 days, and forfeiture of pay of $350.00 pay per month for 3 months, was executed. 10. On 24 February 1984, the United States Army Court of Military Review approved the findings of guilty. 11. SPCM Order Number 72, dated 22 June 1984, affirmed the sentence and ordered the sentence be duly executed. 12. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows, on 23 July 1984, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3, by reason of court-martial. This form further lists his character of service as "bad conduct." 13. The applicant provides a letter from a friend who states, in essence, that the applicant was “railroaded” and that she was told not to get involved since she was also in the military, married, and having a relationship with the applicant. She stated that she did not want to get in trouble so she stayed out of it, but in retrospect, she felt that his command did him a disservice and now he has anger issues because of the incident. 14. The applicant’s service record and medical record are void of any documentation, nor does he provide any supporting documentation, that shows he was injured as a result of his military arrest or as a result of his wisdom tooth being pulled by a military dentist. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-11 (BCD) states 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. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. b. Paragraph 3-7a states that an HD 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. c. Paragraph 3-7b states that a general discharge (GD) 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. 16. 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 received numerous counselings for various indiscretions, received four NJP’s and was found guilty at a SPCM for possession with intent to distribute 27 grams, more or less, of marijuana. His conviction and sentence by a SPCM was in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 2. There is no documentary evidence supporting his claims that he was “railroaded” by CID or that he was injured when he was arrested by CID, nor is there evidence that his jaw was injured by the dental staff when he had his wisdom tooth pulled. Even if these things had happened, they would not excuse the behavior that led to his BCD. He should note that the Army has never had a policy that provides for upgrading discharges solely based upon the passage of time. 3. 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 serious nature of the offense for which he was convicted it would not be appropriate to grant clemency in this case. 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) AR20150005612 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007748 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1