IN THE CASE OF:	  

	BOARD DATE:	  10 June 2008

	DOCKET NUMBER:  AR20080002622 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his bad conduct discharge (BCD) be upgraded to a general under honorable conditions discharge.  

2.  The applicant states that he has made mistakes in his life but the biggest mistake he made was getting addicted to drugs and alcohol.  As a result of his actions, he states that he became a disgrace to his country and the company he served in.  He has completed a 12-step class and has learned some things about his addiction and himself.  He has also learned a trade in barbering and would like to open his own shop in the near future.  Over the years, he has struggled with addictions, but he has never given up on himself.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 June 1990; a supplemental letter, dated 18 December 2007; and three character references.  

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.  After having had prior service in the Army National Guard, the applicant enlisted in the Regular Army on 9 February 1988.  At the completion of the required training, he was awarded military occupational specialty 51B (carpentry and masonry specialist).  He was promoted to specialist four on 14 August 1988.

3.  On 19 April 1989, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent from his unit.  His punishment consisted of a reduction to private first class, E-3; a forfeiture of $218.00 (suspended); 14 days extra duty; and 14 days restriction.  

4.  On 5 July 1989, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent from his unit on 25 May 1989.  His punishment consisted of a reduction to private, E-2; a forfeiture of $182.00 (suspended); 14 days extra duty, and 14 days restriction.

5.  On 19 September 1989, the applicant was found guilty, pursuant to his pleas, by a general court-martial of wrongful appropriation of a motor vehicle, of a value in excess of $100.00, on 25 May 1989; larceny of $380.00 in U.S. currency on 25 May 1989; wrongful use of cocaine on 25 May 1989; wrongful use of cocaine between 9 July 1989 to 11 July 1989; and being absent from his unit without authority, terminated by apprehension, from 14 August 1989 to 29 August 1989.  He was sentenced to be discharged from the service with a BCD; confinement for 11 months; a forfeiture of all pay and allowances; and reduction to private, 
E-1.

6.  On 31 January 1990, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.  The BCD was ordered to be executed on 25 May 1990.

7.  The applicant was discharged on 1 June 1990 under the provisions of Army Regulation 635-200, chapter 3, Section IV as a result of court-martial.  He completed 1 year, 4 months, and 6 days of creditable active service during that enlistment with 287 days of lost time due to AWOL and confinement.

8.  The applicant provided character references from his pastor, a minister, and a youth pastor at his church.  The individuals stated the applicant was a valuable member of their ministry and the Fire Prevention Team.  The applicant was described as being an excellent worker, a good friend, trustworthy, and a man of standards.  
9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states 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 ordered duly executed.

10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  It is noted that the 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 applicant's contentions relate to evidentiary matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.

3.  The applicant’s record of service included two Article 15s and one general court-martial for wrongful appropriation of a motor vehicle, two specifications of wrongful use of cocaine, and being AWOL for 15 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

4.  The applicant’s post-service conduct is commendable; however, this fact does not warrant the relief requested.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

xxx______  xx______  xx______  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.



      xxxxxx______   ___
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080002622





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ABCMR Record of Proceedings (cont)                                         AR20080002622



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