RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2008
	DOCKET NUMBER:  AR20070015333 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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 his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant states that the presumption of regularity that might normally permit the Army Board for Correction of Military Records (ABCMR) to assume that the Army acted correctly in characterizing his service as less than honorable does not apply in his case because of the evidence he is submitting.  He further states that:

	a.  his conduct and efficiency ratings were good until one isolated incident;

	b.  he received letters of commendation for acts above and beyond the call of duty prior to one isolated incident;

	c.  his promotion records show he was a good Soldier prior to one isolated incident;

	d.  he was close to completing his term of enlistment, thus it was unfair to give him a bad conduct discharge;

	e.  his post-service record shows that he has been a good citizen and has worked for a global organization that employs 100,000 employees worldwide in the safety and transportation sector;

	f.  he has no record of convictions by civil authorities and his military record was only tarnished by one Court-Martial conviction; and

	g.  he has matured since his one incident and has long looked to better himself and help society prosper.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 17 April 1997;

b.  Headquarters, Fort Story, Virginia, Certificate of Appreciation, dated 29 March 1994;

	c.  U.S. Army Transportation Center, Fort Eustis, Virginia, Certificate of Achievement, dated 17 December 1993; 

	d.  Department of the Army, Certificate of Training, dated 6 February 1995;

	e.  U.S. Army Transportation Center, Fort Eustis, Virginia, Marine Certificate (Watercraft Operator of Class B and C Vessels), dated 30 August 1994; 

f.  U.S. Army Transportation Center, Fort Eustis, Virginia, Marine Certificate (Seaman), dated 8 October 1992; 

g.  DA Form 638 (Recommendation for Award), dated 13 October 1994, showing award of the Army Achievement Medal; and

h.  applicant’s Certificate of Marriage and Certificates of Birth for his spouse and five children.   

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's record shows that he enlisted in the Regular Army on 18 June 1992 for a period of four years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 88K (Watercraft Operator).  The highest rank he held during his military service was specialist (SPC)/E-4.

3.  The applicant’s record further shows that he was awarded the Army Achievement Medal, the National Defense Service Medal, the Army Service 
Ribbon, and the Marksman Marksmanship Qualification Badge with Rifle Bar   (M-16).  The applicant's records do not show any significant acts of valor during his military service.

4.  While a member of the 73rd Transportation Company, 6th Transportation Battalion, Fort Eustis, Virginia, Court-Martial charges were preferred against the applicant on 15 April 1996 for:  two specifications of unlawfully selling two unregistered assault rifles on or about 15 November 1995 and on or about 5 December 1995; one specification of wrongfully distributing approximately 4.82 grams of marijuana on or about 29 August 1995; one specification of wrongfully distributing approximately 16.88 grams of marijuana on or about 13 September 1995; one specification of wrongfully distributing approximately an eighth of an ounce of marijuana on or about 13 September 1995; and one specification of wrongfully possessing, with intent  to distribute, marijuana on or about 13 September 1995.

5.  On 16 May 1996, the convening authority agreed to disapprove any part of the sentence adjudged in excess of a bad conduct discharge, confinement for 18 months, forfeiture of all pay and allowances, and reduction to the lowest grade.  

6.  On 16 May 1996, the applicant pled guilty at a General Court-Martial to three specifications of wrongfully distributing marijuana and one specification of wrongfully possessing marijuana.  He also pled not guilty to two specifications of attempting to sell an unregistered weapon.  

7.  The Court found the applicant guilty of three specifications of wrongfully distributing marijuana and one specification of wrongfully possessing marijuana.  The Court also found him not guilty to two specifications of attempting to sell an unregistered weapon.  The Court sentenced him to reduction to the grade of private/E-1; forfeiture of all pay and allowances; confinement for 3 months; and a bad conduct discharge.  The sentence was adjudged on 16 May 1996.

8.  On 10 December 1996, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

9.  On 4 April 1997, U.S. Army Transportation Center and Fort Eustis, Fort Eustis, Virginia, published General Court-Martial Order Number 8 that shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the Bad Conduct Discharge executed. 


10.  The applicant was discharged from the Army on 17 April 1997.  The DD Form 214 he was issued shows that he was discharged under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 4 years and 10 months of creditable military service.  

11.  The applicant submitted miscellaneous certificates of appreciation and achievement for excellent performance of duties during his military service.  He also submitted copies of his spouse's and children's birth certificates as a reflection of his serious stand on having a stable family.

12.  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 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.

13.  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.

14.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.


2.  The applicant’s post-service successful employment, stable family, and contributions to the community and society were noted.  However, evidence of record shows that he was convicted by a General Court-Martial, which was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted. 

3.  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.

4.  After a review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__cd____  __lmd___  __jcr___  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.



							Carmen Duncan
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.