IN THE CASE OF:	  

	BOARD DATE:	  26 August 2008

	DOCKET NUMBER:  AR20080007024 


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, in effect, an upgrade of his Bad Conduct Discharge (BCD).  

2.  The applicant states, in effect, that his discharge was the result of his selling drugs to support his family, and at the time, he believed he had no other choice. He states that he was young and made a bad choice; however, he has already paid a tremendous price for his errors.  He apologizes and prays that he be given another chance. 

3.  The applicant provides a self-authored statement and third-party statement from his Pastor in support of his application. 

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 initially enlisted in the Regular Army (RA) and entered active duty on 25 March 1976, and was trained in and awarded military occupational specialty (MOS) 91B (Medical Specialist).  

3.  On 25 September 1978, he was honorably discharged, in the rank of specialist four (SP4), for the purpose of immediate reenlistment after completing 2 years, 6 months, and 1 day of active military service, and on 26 September 1978, he reenlisted in the RA for 4 years.  

4.  The applicant's record shows that during his active duty tenure, he earned the Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Driver's Badge; Expert Marksmanship Qualification Badge with Rifle and Pistol Bars, and Marksman Marksmanship Qualification Badge with Grenade Bar.  His record documents no acts of valor or significant achievement.  

5.  The applicant's disciplinary history includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 16 April 1981, for disobeying a lawful order and for three specifications of failing to go to his appointed place of duty at the time prescribed. His punishment for these offenses was 7 days of correctional custody and a reduction to private first class (PFC).  

6.  On 7 January 1983, a Special Court-Martial (SPCM) found the applicant guilty, pursuant to his plea, of three specifications of violating Article 92 of the UCMJ by wrongfully possessing a controlled substance; wrongfully transferring a controlled substance; and wrongfully selling a controlled substance.  The resulting approved sentence was a reduction to private/E-1 (PV1), confinement at hard labor for 45 days, and a BCD.   

7.  On 30 June 1983, the United States Army Court of Military Review, affirmed the findings of guilty and the sentence in the applicant’s case.

8.  SPCM Order Number 93, issued by Headquarters, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, dated 20 October 1983,  directed, Article 71(c) of the UCMJ having been complied with, that the sentence be duly executed.  

9.  On 8 November 1983, the applicant was discharged with a BCD after completing a total of 7 years, 5 months, and 17 days of creditable active military service, and accruing 77 days of time lost.

10.  The applicant provides a third-party statement from his Pastor, who states that the applicant is a member of his church and is an asset to the ministry.  He further states the applicant is dependable, caring, responsible, and trustworthy; and that the applicant respects authority and has organization and problem solving skills.  He concludes by stating that the applicant is an outstanding worker and great person.   

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

12.  Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he has already paid a tremendous price for his mistakes, and based on his post service conduct, was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief. 

2.  The evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.   By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ, 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.

3.  The applicant's good post service conduct, as attested to in the third-party statement provided, is noteworthy.  However, this factor alone is not sufficient to support an upgrade of his discharge at this late date.  The evidence of record shows that in addition to the SPCM conviction that resulted in the applicant's BCD, he also had a disciplinary record that included his acceptance of NJP for multiple disciplinary infractions.  Given the gravity of the offenses the resulted in his SPCM conviction and BCD, and based on his prior disciplinary history, there is an insufficient evidentiary basis to support clemency in this case.


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

___x____  ___x____  ___x____  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.




 _   _______x   ______________
       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)                                         AR20080007024



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ABCMR Record of Proceedings (cont)                                         AR20080007024



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