RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 August 2007
	DOCKET NUMBER:  AR20070003198 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Betty A. Snow

Analyst

The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. Rodney E. Barber

Member

Mr. Rowland C. Heflin

Member

	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 (BCD) be upgraded to an Honorable Discharge (HD).  

2.  The applicant provides no statement and no additional documentary evidence in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 3 April 2002, the date of his discharge.  The application submitted in this case is dated 22 February 2007

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 records show he enlisted in the Regular Army and entered active duty on 3 June 1998.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman).  

4.  The applicant’s record shows that during his active duty tenure, he received the Army Service Ribbon.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

5.  On 5 January 2001, a General Court-Martial (GCM) found the applicant guilty, pursuant to his pleas, of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by failing to go at the time prescribed to his appointed place of duty on or about 24 February 2000; and of two specifications of violating 
Article 112a of the UCMJ by wrongfully using marijuana between on or about 
23 January 2000 and on or about 27 February 2000 and by wrongfully using marijuana between on or about 20 February 2000 and on or about 20 March 2000.  The resultant sentence from the GCM Military Judge was reduction to private/E-1 (PV1), confinement for 40 days, and a BCD.  

6.  On 5 January 2001, in Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum GCM Orders Number 3, the GCM convening authority approved the sentence and directed that, except for the part of the sentence that extended to a BCD, the sentence would be duly executed.   

7.  On 12 December 2001, GCM Orders Number 281, issued by Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, directed, Article 71(c) of the UCMJ having been complied with (which confirms completion of the appellate review), that the BCD portion of the applicant’s approved sentence be duly executed.  On 3 April 2002, the applicant was discharged accordingly.  

8.  The DD Form 214 issued to the applicant on the date of his separation, 
3 April 2002, shows that he was separated with a BCD under the provisions of Chapter 3, Army Regulation 635-200, by reason of court-martial.  It also shows that at the time of his separation, he had completed a total of 3 years, 8 months, and 28 days of creditable active military service and he had accrued 30 days of time lost due to confinement.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. 

10.  Title 10 of the United States Code, Section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and his rights were protected throughout the court-martial process.  





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.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that given his undistinguished record of military service, and the seriousness of the offenses for which he was convicted, clemency would be inappropriate in this case.  

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 April 2002, the date of his discharge.  Therefore, the time for him to file a request for correction of any error or injustice 
expired on 2 April 2005.  He failed to 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___PMS _  __REB__  __RCH __  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.




_____Paul M. Smith______
          CHAIRPERSON




INDEX

CASE ID
AR20070003198
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/08/28
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
2002/04/03
DISCHARGE AUTHORITY
AR 635-200 CH 3
DISCHARGE REASON
Court-Martial 
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.0000
2.

3.

4.

5.

6.