RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 5 February 2008
DOCKET NUMBER: AR20070011595
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. Kenneth L. Wright
Chairperson
Mr. Antonio Uribe
Member
Mr. Ronald D. Gant
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 to an honorable discharge.
2. The applicant states that he discovered he was eligible for an upgrade in discharge after 6 months. It has been 6 years since his discharge. He needs an upgrade of his discharge so he can use his G. I. Bill. He has yet to get into trouble since the incident 6 years ago.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and an acceptance letter from Blue Ridge Community College.
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 applicants 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 applicants 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 on 19 November 1999 for 4 years. He completed basic training and advanced individual training and was awarded military occupational specialty 77F (Petroleum Supply Specialist).
3. On 29 October 2001, the applicant was convicted, in accordance with his pleas, by a general court-martial of one specification of wrongfully using marijuana; two specifications of wrongfully distributing some quantity of methylenedioxymethamphetamine (i.e., Ecstasy); and one specification of wrongfully possessing some quantity of methylenedioxymethamphetamine. His approved sentence was to be discharged with a bad conduct discharge, to be confined for 9 months, and to forfeit all pay and allowances.
4. On 9 October 2002, the U. S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.
5. On 6 May 2003, the applicant was discharged with a bad conduct discharge pursuant to his sentence by court-martial. He had completed 2 years, 10 months, and 22 days of creditable active service and had 206 days of lost time.
6. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.
7. 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. 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 applicants good post-service conduct is commendable; however, it does not warrant granting the relief requested.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__klr___ __au____ __rdg___ 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.
__Kenneth L. Wright___
CHAIRPERSON
INDEX
CASE ID
AR20070011595
SUFFIX
RECON
DATE BOARDED
20080205
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
20030506
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES 1.
105.00
2.
3.
4.
5.
6.
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