RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070016802 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 an honorable discharge. 

2.  The applicant provides no argument or comments to support his request for an upgrade of his discharge. 

3.  The applicant provides an unauthenticated statement of service, copies of his DD Form 214, a copy of a court-martial order, and a copy of his discharge order. 

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 enlisted in Syracuse, New York on 25 August 1993 for a period of 4 years and training in the infantry career management field (CMF11).  He completed his one-station unit training at Fort Benning, Georgia and was transferred to Fort Riley, Kansas for assignment to an infantry company.

3.  On 14 March 1995, he was convicted by a general court-martial of two specifications of the wrongful use of marijuana in March and October 1994.  He was sentenced to confinement for 45 days, reduction to the pay grade of E-1, and a BCD.  The applicant was placed on involuntary excess leave on 
22 September 1995 pending the appellate review of his court-martial conviction.

4.  On 4 December 2002, orders were published at Fort Riley indicating that the applicant’s sentence had been affirmed and directing that the applicant’s BCD be executed.  

5.  Accordingly, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 9 years, 2 months, and 8 days of total active service, of which 2,631 days (7+ years) were excess leave and he had approximately 30 days of lost time due to being in confinement.    

6.  On 27 April 2005, officials at the Human Resources Command in St. Louis (HRC-STL), Missouri provided the applicant a Statement of Service indicating that he had served from 25 August 1993 to 1 October 1998 and was honorably discharged in lieu of trial by court-martial.  An information paper subsequently prepared by the same HRC-STL official indicates that the applicant’s DD Form 214 was not available and the statement of service was all that was available.  There is no indication in the available records where HRC-STL officials obtained the information contained in the statement of service.      

7.  Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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 type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s assertions have been noted; however, it must be presumed that HRC-STL officials made a mistake when they prepared the statement of service provided to the applicant because the available records do not show evidence that he was honorably discharged.  Additionally, he has failed to show through evidence submitted with his application matters in mitigation sufficient to warrant an upgrade of his discharge.     
  
4.  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.   


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JLP  __  __TSK__  __DWT__   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.





      ___        TSK                ___
                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.


ABCMR Record of Proceedings (cont)                                         AR20070016802



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508