IN THE CASE OF:	  

		BOARD DATE: 	         27 May 2009

		DOCKET NUMBER:  AR20090000628 


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 be upgraded to a general discharge.

2.  The applicant states, in effect, that his bad conduct discharge came during his second enlistment and it was unwarranted and inequitable because it resulted from one isolated incident after 43 months of continuous and exemplary service.  He contends that the bad conduct discharge came subsequent to his first honorable discharge and after he received the Army Achievement Medal and Good Conduct Medal.  He states that his actions were the result of his addiction and did not reflect his entire service record nor was it an accurate reflection of his fitness to serve while in the service.  He goes on to state that during his second enlistment he became addicted to alcohol and cocaine and found his life spiraling out of control as a result of his young age and immaturity.  He indicates that he was court-martialed for use and distribution of cocaine; specifically, that he brought a friend, at his request, to acquire some cocaine to support their habits and was caught by the Criminal Investigative Division.  He states that he is not proud of what he did and that he has turned his life around.  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 was born on 30 January 1964.  He enlisted in the Regular Army on 21 November 1985 for a period of 3 years.  He successfully completed basic training and advanced individual training in military occupational specialty 88M (motor transport operator).

3.  The applicant was enrolled in Track I in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 2 February 1988 for cocaine abuse.  On 17 February 1988, he completed the program and was released back to his unit.

4.  The applicant reenlisted on 18 August 1988 for a period of 4 years.

5.  On 24 February 1989, in accordance with his pleas, the applicant was convicted by a general court-martial of distributing and using cocaine.  He was sentenced to be reduced to pay grade E-1, to be confined for 20 months, and to be discharged from the service with a bad conduct discharge.  On 20 April 1989, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 9 months, and reduction to E-1.

6.  The decision of the U.S. Army Court of Military Review is not available.  However, on 19 October 1989, the convening authority ordered the bad conduct discharge to be executed, indicating the sentence was affirmed.

7.  Accordingly, the applicant was discharged with a bad conduct discharge on 23 October 1989 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  He had served a total of 3 years, 4 months, and 6 days of creditable active service with 210 days of lost time due to confinement.  His awards include the Army Service Ribbon, the Army Achievement Medal, the Good Conduct Medal, and the Driver and Mechanic Badge.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge 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.

9.  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.  

10.  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.

11.  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 ABCMR 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.  Age is not a sufficiently mitigating factor.  The applicant was almost 22 years old when he enlisted and he successfully completed basic combat training and advanced individual training.  In addition, he served over 3 years of service prior to his general court-martial conviction.  

2.  Although the applicant contends that during his second enlistment he became addicted to alcohol and cocaine, it is noted that he was enrolled in the ADAPCP for cocaine abuse during his first enlistment.  

3.  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.

4.  The applicant's entire record of service and his awards were considered.  However, since his record of service included one general court-martial conviction for serious drug offenses and 210 days of lost time, 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 or an honorable discharge.

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)                                         AR20090000628





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ABCMR Record of Proceedings (cont)                                         AR20090000628



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