RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070009141 


	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. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Mr. John N. Slone

Chairperson

Ms. Marla J. N. Troup

Member

Mr. Thomas M. Ray

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 that his bad conduct discharge (BCD) be upgraded to a general or an honorable discharge.

2.  The applicant states that he truly believes the punishment that he received was too severe for a "small scale" of drugs (less than O.5 grams).  He states that he honestly believes that he should be given a second chance if possible.

3.  The applicant provides in support of his application, a copy of his Certificate of Release or Discharge from Active Duty.

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 18 June 1987, the applicant enlisted in the Army in Miami, Florida, for 4 years, in the pay grade of E-3.  He successfully competed his training as an infantryman.  He was transferred to Germany on 6 October 1988 and he was advanced to the pay grade of E-4 on 1 October 1990.

3.  On 28 December 1990, the applicant was convicted, pursuant to his pleas, by a general court-martial of wrongfully distributing marijuana in the hashish form on diverse occasions from 1 September 1990 to 1 November 1990.  He was sentenced to a BCD, confinement for 9 months, a reduction to the pay grade of E-1 and a forfeiture of all pay and allowances.





4.  The convening authority approved the sentence as adjudged and on 13 January 1992, General Court-Martial Order Number 3, Headquarters, United States Army Armor Center and Fort Knox, noting that the findings and sentence as approved by the convening authority had been affirmed, ordered that the BCD be executed.

5.  Accordingly, on 24 February 1992, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3 as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 4 years, 1 month and 3 days of net active service and he had approximately 7 months and 5 days of lost time due to being in confinement.  He was furnished a BCD.  

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that 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 duly executed.

7.  Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Army Board for Correction of Military Records 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 modify the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  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 characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore were appropriate considering the facts of the case.

3.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses.  Additionally, in accordance with the applicable law, this Board is not empowered to set aside a court-martial conviction.  It is only empowered to change the severity of the imposed sentence if clemency is determined to be 


appropriate.  Considering his felonious acts (wrongfully distributing marijuana in the hashish form), which resulted in his court-martial conviction, clemency does not appear to be appropriate in this case.  However, the applicant is not precluded from applying to the United States Pardon Attorney concerning this matter.

4.  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.

5.  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

___JNS__  __MJNT_  __TMR__  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.





_____John N. Slone____
          CHAIRPERSON




INDEX

CASE ID
AR20070009141
SUFFIX

RECON

DATE BOARDED
20071218
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  30
105.0000/COURT-MARTIAL
2.  31
105.0100/SENTENCE INCLUDE DISCHARGE
3.

4.

5.

6.