IN THE CASE OF:	  

	BOARD DATE:	  5 June 2008

	DOCKET NUMBER:  AR20080001304 


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 was young at the time he made the bad decision that dishonored the military, his family, and himself.  He states that he has not been in any trouble in the 14 years since his discharge, and would like the chance to prove his worth again through an upgrade of his BCD.  

3.  The applicant provides Certificates of Training and Achievement and an Army/American Council on Education Registry Transcript 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 he enlisted in the Regular Army (RA) and entered active duty on 8 March 1989.  He was trained in, awarded, and served in military occupational specialty (MOS) 94B (Food Service Specialist).  His Personnel Qualification Record (DA Form 2-1) shows that he attained the rank of private first class (PFC) on 1 April 1991, and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced on two separate occasions, with the final reduction to private/E-1 (PV1) on 6 March 1992.

3.  Item 21 (Time Lost) of the applicant’s DA Form 2-1 includes an entry which shows he was absent without leave (AWOL) for 5 days from 12 May 1990 through 16 May 1990.  His Official Military Personnel File (OMPF) contains a Personnel Action (DA Form 4187), dated 29 August 1991, which shows he received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 22 April 1991.  

4.  On 26 November 1991, a General Court Martial (GCM) found the applicant guilty, pursuant to his pleas, of violating Articles 80, 81, 86, and 112a of the UCMJ as indicated:  Article 80, by attempting to wrongfully distributing some amount of methamphetamine, a controlled substance;  Article 81, two specifications of conspiring to wrongfully distribute methamphetamine, a controlled substance; Article 86, by absenting himself without authority from on or about 13 August 1991 through on or about 26 August 1991; and Article 112a, four specifications of wrongfully using controlled substances.  The resultant sentence from the military judge was a BCD, 6 years confinement, forfeiture of all pay and allowances, and a reduction to private/E-1 (PV1).  On 6 March 1992, the GCM convening authority approved only that portion of the sentence that provided for reduction to PV1, confinement for 36 months, and a BCD, and directed that all but the BCD portion of the sentence be duly executed.

5.  On 25 May 1993, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence pertaining to the applicant after having determined that they were correct in law and fact.

6.  On 16 December 1993, GCM Order Number 428, issued by Headquarters, United States Disciplinary Barracks, United States Army Combined Arms Command and Fort Leavenworth, Fort Leavenworth, Kansas, directed, Article 71c of the UCMJ having been complied with, that the BCD portion of the sentence be executed, and on 30 December 1993, the applicant was discharged accordingly.



7.  The DD Form 214 issued to the applicant on the date of his discharge shows he was separated under the provisions of Paragraph 3-11, Army Regulation 
635-200, that he received a BCD, and that Item 28 confirms he was discharged by reason of court-martial.  The separation document also shows that at the time of his discharge, he had completed a total of 2 years, 5 months, and 17 days of creditable active military service and had accrued 1,212 days of time lost due to AWOL and confinement.

8.  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 BCD.  It provides, 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 the affirmed sentence ordered duly executed.

9.  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 desire to have his BCD upgraded to allow him the opportunity to prove his worth has been carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.  

2.  The evidence of record shows that the applicant’s trial by court-martial that resulted in his BCD was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  

3.  The record further confirms that the applicant was only discharged after completion of the entire appellate process and only after his sentence was affirmed by the appropriate appellate court.  

4.  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.  

5.  Given the applicant's overall record of undistinguished service, and the seriousness of the offenses for which he was convicted, there is an insufficient evidentiary basis to support clemency in this case. 

6.  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)                                         AR20080001304



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ABCMR Record of Proceedings (cont)                                         AR20080001304


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