IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150014036 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150014036 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. IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150014036 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 an honorable discharge. 2. The applicant states he was given a bad conduct discharge two weeks before his separation date. He was charged with selling hash. This was not true. His separation paper work was not given to him. His case should be opened so he may get a fair trial and copies of all the paperwork should be sent to him. 3. The applicant does not provide any 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. The applicant enlisted in the Regular Army for a 3-year term on 10 January 1980 and he held military occupational specialty 76Y (Unit Supply Specialist). He served in Germany from 30 December 1981 to on or about 21 December 1982. 3. On 11 June 1981, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a reduction to E-2, a forfeiture of pay, and extra duty. 4. On 22 December 1982, he was convicted by a special court-martial of: * one specification of wrongfully possessing marijuana in the hashish form on or about 11 July 1982 * one specification of wrongfully selling marijuana in the hashish form on or about 11 July 1982 * one specification of wrongfully transferring marijuana in the hashish form on or about 11 July 1982 5. The court sentenced him to a reduction to the lowest enlisted grade of E-1, a forfeiture of $382.00 pay per month for 3 months, confinement at hard labor for 3 months, and a bad conduct discharge. 6. On 28 February 1983, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed. The record of trial was forwarded to the Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. 7. On 27 September 1983, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 8. Special Court-Martial Order Number 850, issued by the U.S. Army Correctional Activity, Fort Riley, KS on 29 December 1983 shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed. 9. On 13 January 1984, the applicant was discharged from the Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial with a bad conduct discharge under the provisions of chapter 3, Army Regulation (AR) 635-200 (Personnel Separations). This form further shows he completed a total of 3 years, 10 months, and 1 day of creditable military service and he had lost time from 22 December 1982 to 22 February 1983 and excess leave from 25 March 1983 to 13 January 1984. REFERENCES: 1. AR 635-200 provides for the separation of enlisted personnel: 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 3-7c, a discharge under other than honorable conditions is an administrative separation -from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11, a member 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. 2. AR 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regrading an applicant’s request for the correction of a military record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. 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: 1. The applicant was convicted by a special court-martial of multiple specifications related to wrongfully possessing, selling, and transferring illegal drugs. His trial by a special court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable law and regulations. Other than his statement, he provides no evidence of an error or an injustice 2. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014036 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014036 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2