IN THE CASE OF:	  

		BOARD DATE:	  30 December 2008

		DOCKET NUMBER:  AR20080016794 


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, that his bad conduct discharge (BCD) be upgraded.   

2.  The applicant states, in effect, he would like his BCD upgraded so that he may receive medical care for a shoulder injury he received while serving on active duty.  He claims he was instructed to wait 5 years and request an upgrade of his discharge.  

3.  The applicant provides no documentary evidence 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 enlisted in the Regular Army and entered active duty on 8 July 1998, and trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewmember).

3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  The records provided for Board review contained no medical treatment records.  

4.  On 22 August 2001, a General Court-Martial (GCM) found the applicant guilty of violating Article 81 of the Uniform Code of Military Justice (UCMJ) by conspiring to wrongfully distribute a controlled substance (ecstasy); and of three specifications of violating Article 112a of the UCMJ by wrongfully distributing a controlled substance (ecstasy) on divers occasions between 1 January 2000 and 30 March 2001 wrongfully distributing a controlled substance (ecstasy) on divers occasions between 2 September 2000 and 30 March 2001, and wrongfully importing a controlled substance (ecstasy) between on or about 2 September 2000 and on or about 20 March 2001.  The sentence imposed by the military judge was forfeiture of all pay and allowances, confinement for 48 months, and a BCD.  

5.  On 4 March 2002, in Headquarters, 10th Mountain Division (Light Infantry) (Rear), Fort Drum, New York, GCM Order Number 13, the GCM convening authority approved only so much of the sentence that provided for forfeiture of all pay and allowances, confinement for 30 months, and a BCD, and directed that, except for the part of the sentence extending to a BCD, the sentence be duly executed.  

6.  Headquarters, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, GCM Order Number 264, dated 9 May 2003, directed, Article 71(c) of the UCMJ having been complied with, that the BCD be duly executed.  On 
26 September 2003, the applicant was discharged accordingly.  The separation document (DD form 214) he was issued shows he completed a total of 3 years, 2 months, and 17 days of creditable active military service and accrued 722 days of time lost due to confinement.  The DD Form 214 also shows that he was separated under the provisions of Chapter 3, Army Regulation 635-200, by reason of court-martial.  

7.  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 BCD portion of the sentence is ordered duly executed.
8.  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 in order for him to receive medical treatment for a shoulder injury he received on active duty was carefully considered.  However, there is insufficient evidence to support this claim.  The applicant’s record is void of any medical treatment records, and the applicant has failed to provide medical records supporting his claim of a shoulder injury, and even if this claim were true, it alone would not be sufficiently mitigating to support an upgrade of his discharge.   

2.  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.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge, and the applicant's record reveals no acts of valor, significant achievement, or service warranting special recognition.  Given the gravity of the offenses the resulted in his GCM conviction and BCD, and based on his undistinguished record of service, there is an insufficient evidentiary basis to support clemency in this case. 

4.  The applicant is advised that the Army does not now have, nor has it ever had a policy that allowed for the automatic upgrade of a discharge based on the passage of time.  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)                                         AR20080016794



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ABCMR Record of Proceedings (cont)                                         AR20080016794


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