IN THE CASE OF:	  

		BOARD DATE:	        23 June 2009

		DOCKET NUMBER:  AR20090002585


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.

2.  The applicant states, in effect, that his punitive discharge continues to hinder his everyday life.  He also states that with this type of discharge he is unable to receive any medical assistance for his service-connected disabilities.  An upgrade of his discharge would also affect the career field that he wants to enter.

3.  The applicant provides an unsigned, undated DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), several unsigned letters of support from his friends and co-workers, 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’s record shows that he enlisted in the Regular Army on 28 March 1997 for a period of 3 years.  He completed his initial training and was awarded the military occupational specialty 13M, Multiple Launch Rocket System and High Mobility Artillery Rocket System Crewmember.

3.  On 20 December 2001, the applicant was convicted by a general court-martial of one specification of conspiracy to distribute 15 pills of "Ecstasy" on or about 19 January 2001 and one specification of the wrongful distribution of in excess of 100 pills of "Ecstasy" between on or about 31 December 2000 and 17 February 2001.  The applicant was sentenced to a forfeiture of all pay and allowances, confinement for 6 years, and a dishonorable discharge.  The sentence was adjudged on 20 December 2001.

4.  On 10 July 2002, the Commander, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, approved the execution of that portion of the sentence that provided for confinement for 3 years and a dishonorable discharge.  That portion of the sentence pertaining to the forfeiture of all pay and allowances was deferred effective 7 February 2002 and was waived effective until 10 October 2002.  The applicant was also credited with 75 days of confinement against the sentence to confinement.

5.  On 23 April 2003, the Commander, U.S. Army Field Artillery Center and Fort Sill, in accordance with action of the Army Review Board, dated 17 March 2003, approved the applicant's parole with an effective date of 18 April 2003 conditioned upon continued good behavior while incarcerated.  Upon his release, the applicant was required to participate in a drug abuse therapy program and pay child support in an amount and on a schedule to be determined by the court.  Additionally, in accordance with the action of the Army Clemency and Parole Board, dated 17 March 2003, the applicant's dishonorable discharge adjudged on 20 December 2001, as promulgated in General Court-Martial Order Number 131, dated 10 July 2002, was upgraded to a bad conduct discharge.

6.  On 9 February 2006, after the appellate courts affirmed the applicant’s conviction and sentence, the Commander, U.S. Army Field Artillery Center and Fort Sill, ordered the execution of the applicant's bad conduct discharge.

7.  The applicant was discharged on 9 February 2006 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial.  His service was characterized as bad conduct.  He was credited with 4 years, 6 months, and 10 days of total active service with lost time from 6 October 2001 through 9 February 2006 due to confinement.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provided that a Soldier would 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 sentence affirmed before it could be duly executed.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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 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 change a discharge due to matters which should have been raised in the appellate process, 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.

12.  The applicant submitted five unsigned letters from individuals he states are his friends and co-workers.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his bad conduct discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  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 characterized the misconduct for which the applicant was convicted.

3.  The evidence of record shows that the applicant was convicted by a general court-martial for conspiracy to distribute in excess of 100 pills of "Ecstasy" and the wrongful distribution of "Ecstasy."  The applicant was sentenced to a forfeiture of all pay and allowances, confinement for 6 years, and a dishonorable discharge.  On 23 January 2003, the Army Clemency and Parole Board upgraded his dishonorable discharge to a bad conduct discharge.  On 9 February 2006, he was discharged from the Army.

4.  The applicant has provided no evidence to show that his discharge was unjust.  He has not provided evidence sufficient to mitigate the character of his discharge.

5.  The applicant's contentions have been noted; however, the seriousness of the offenses for which the applicant was convicted by a general court-martial diminished the quality of his service below that meriting a general discharge.

6.  In his request to the Board, the applicant submitted unsupported statements that he had numerous service-connected disabilities.  The applicant is advised the Board does not grant relief in the form of an upgraded discharge solely for the purpose of qualifying for medical benefits.

7.  The letters submitted by the applicant were considered by the Board; however, based on the lack of signatures they were not considered sufficient evidence.

8.  The applicant's available military records and documentation submitted with his application contain no matters upon which clemency in the form of an upgrade of his bad conduct discharge to an honorable or general discharge may be granted.  In view of the foregoing, there is no basis for granting the applicant's request.

9.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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)                                         AR20080016230



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ABCMR Record of Proceedings (cont)                                         AR20090002585



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