RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070010857 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 be upgraded.

2.  The applicant states that he was young and did not realize the consequences of his actions.  He only had 3 to 4 months to go before his enlistment was up.  He was side tracked by drinking and drugs.  Now that he is older, it is hurting him as far as getting jobs.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal 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.  The applicant was born on 21 April 1968.  He enlisted in the Regular Army on 17 October 1986 for 3 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 88M (Motor Transport Operator).

3.  A DA Form 4187 (Personnel Action), dated 30 November 1987, indicates the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on 29 October 1987 for a violation of Article 134.

4.  A DA Form 268 (Request for Suspension of Favorable Personnel Actions), dated 25 November 1987, indicates the applicant was at one point pending elimination under the provisions of Army Regulation 635-200, chapter 9 (drug or alcohol abuse rehabilitation failure).


5.  On 23 August 1989, the applicant was placed in pre-trial confinement.  

6.  On 14 November 1989, the applicant was convicted, in accordance with his pleas, by a general court-martial of one specification of wrongfully possessing around 2 1/2 grams of marijuana in the hashish form; one specification of wrongfully using marijuana; four specifications of assault; and one specification of wrongfully committing an indecent act with a female, not his wife.  His approved sentence was a bad conduct discharge, confinement for one year, a forfeiture of all pay and allowances, and a reduction to pay grade E-1.

7.  On 22 March 1990, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence.

8.  On 25 May 1990, the unexecuted portion of the applicant’s sentence to confinement was remitted pending appellate review, and the applicant was placed on excess leave.

9.  The appellate action following the U. S. Army Court of Military Review’s decision is not available.  However, U. S. Army Correctional Brigade, Fort Riley, KS General Court-Martial Order Number 377, dated 26 June 1990, indicates that the applicant’s sentence had been affirmed.

10.  On 6 July 1990, the applicant was discharged with a bad conduct discharge pursuant to his sentence by court-martial.  He had completed 2 years,                11 months, and 15 days of creditable active service and had 55 days of lost time plus 220 days of lost time subsequent to his normal expiration of term of service, all due to confinement.

11.  Army Regulation 635-200 governs the separation of enlisted personnel.  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.  

12.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

13.  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 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 moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was over 18 years old when he enlisted.  He successfully completed training and should have been well aware of the Army’s views on alcohol and drug abuse.  It appears that at one time he had been enrolled in the Army’s Alcohol and Drug Abuse Prevention and Control Program and been given an opportunity to overcome any alcohol and/or drug addictions he had.  

2.  It is acknowledged that the applicant had only 3 to 4 months to go before his enlistment was up.  However, he also should have been aware of that fact.  He failed to control himself for that short period of time and became involved in some very serious misconduct.  

3.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__dkh___  __jrh___  __eem___  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.




__David K. Haasenritter
          CHAIRPERSON




INDEX

CASE ID
AR20070010857
SUFFIX

RECON

DATE BOARDED
20080125
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19900706
DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
105.00
2.

3.

4.

5.

6.