RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	12 April 2007  
	DOCKET NUMBER:  AR20060011850 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that it has been almost 20 years since his discharge.  He also states that the bad conduct discharge should have been upgraded automatically six months after his discharge.

3.  The applicant provides a copy of his DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 23 December 1987, the date of his discharge from active duty.  The application submitted in this case is dated 10 August 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-3, on 29 June 1983, for 4 years.  He was promoted to pay grade E-4 on 1 July 1984.

4.  On 6 March 1987, the applicant pled guilty before a military judge sitting at a special court-martial of wrongfully distributing 1.071 grams of cocaine on 24 September 1986.  The military judge adjudged the following sentence on 16 March 1987:  to be discharged with a bad conduct discharge; to be confined for 45 days; to forfeit $400.00 pay per month, for two months; and to be reduced to pay grade E-1.

5.  On 16 March 1987 the applicant was placed in confinement.  On 22 April 1987, he was released from confinement due to the expiration of his sentence.

6.  On 30 April 1987, the convening authority approved the findings and sentence in the case.
7.  On 30 June 1987, the United States Army Court of Military Review, having found the approved findings of guilt and the sentence correct in law and fact, determined on the basis of the entire record that they should be approved, and affirmed the findings of guilt and the sentence.

8.  The applicant was retained for the convenience of the Government for 139 days and was discharged on 23 December 1987, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 3, as a result of court-martial, with a bad conduct discharge.  He was credited with 4 years, 4 months, and 19 days net active service with 37 days lost time due to confinement.  Item 18 (Remarks), of the applicant's DD Form 214, shows he was authorized to take 217 days excess leave for the period 21 May 1987 through 23 December 1987.

9.  The applicant submits a copy of his DD Form 293 with this application; however, there is no evidence of record that shows the applicant had previously applied for an upgrade of his discharge to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.  

10.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.  

11.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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 separation specifically allows such characterization.

12.  Army Regulation 635-200, paragraph 3-7c, defines an under other than honorable conditions discharge.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  When authorized, it is issued to a Soldier for misconduct or in lieu of trial by court-martial.



DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  The applicant's contention has been noted; however, contrary to the applicant's assertion that the bad conduct discharge should have been upgraded automatically six months after his discharge, the Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  He has provided no evidence or argument to show the discharge should be upgraded and his military records and documentation submitted with his application contain no matter upon which clemency should be granted.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 December 1987; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 22 December 1990.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

5.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_MJF____  __EM___  ___CLG _  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




____Curtis L. Greenway ____
          CHAIRPERSON




INDEX

CASE ID
AR20060011850
SUFFIX

RECON

DATE BOARDED
20070412
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19871223
DISCHARGE AUTHORITY
AR635-200,Chapter 3 . . . . .  
DISCHARGE REASON
As a result of Court-Martial
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
A70
2.

3.

4.

5.

6.