IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20090000336 


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.

2.  The applicant states that he rose from the grade of E-1 to E-5 as a military policeman in 3 years and feels that he should have been given a second chance. The applicant states that his discharge was inequitable because it was based on one isolated incident in 6 years of honorable service and that his defense counsel was ineffective.

3.  The applicant provides no additional documentation in support of this case.

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 the Regular Army on 17 June 1980.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95B (Military Police).  

3.  The applicant was honorably discharged on 13 January 1983 and immediately reenlisted on 14 January 1983.  He was promoted to the rank and grade of Sergeant (SGT)/E-5 on 3 December 1983.

4.  On 4 November 1985, the applicant was convicted, in accordance with his pleas, by a special court-martial, of wrongful possession and use of methamphetamine.  His sentence consisted of a reduction to the grade of private (PV1)/pay grade E-1, confinement for four months, and a BCD.  The sentence was approved.  Confinement in excess of 75 days was suspended with the provision for automatic remission.

5.  On 25 March 1986, the U.S. Army Court of Military Review (USACMR) considered the applicant's appeal and found that the findings and sentence were correct in law and fact and affirmed the findings and sentence.

6.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 14, dated 23 January 1987, directed that the bad conduct discharge be executed.

7.  On 5 March 1987, the applicant was discharged from the Army with a bad conduct discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, by reason of court-martial.  He completed 2 years, 11 months, and 20 days of creditable active service on his last enlistment.  The applicant completed a total of 6 years, 6 months, and 20 days of total active service with 60 days of lost time due to confinement.

8.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

9.  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.
10.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. 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.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant had no other record of misconduct.  However, the evidence of record confirms that his trial by court-martial 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.

2.  By law, the Army Board of Correction for Military Records may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3.  The applicant's entire record of service was considered in this case.  However, given the seriousness of the offense for which he was convicted, his MOS, and his rank at the time, it is determined that his service was not sufficiently meritorious or mitigating to warrant the relief requested.

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)                                         AR20090000336



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000336



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1