IN THE CASE OF:
BOARD DATE: 14 July 2009
DOCKET NUMBER: AR20090004076
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 that his sentence was to be suspended after 7 months of time served. He adds that it has been close to 20 years since his incarceration and he would like to clean his record.
3. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and five Training Progress Notes 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 applicants 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 applicants 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 22 July 1986. He successfully completed basic combat training and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer). He was promoted to specialist, E-4, on 9 December 1988.
3. On 12 June 1989, the applicant was convicted, in accordance with his pleas, by a general court-martial of wrongful distribution of marijuana. He was sentenced to be discharged with a bad conduct discharge, to be confined for one year, forfeiture of all pay and allowances, and to be reduced to Private/E-1.
4. The convening authority approved the sentence but ordered that the execution of that part of the sentence adjudging confinement in excess of seven months be suspended for seven months, at which time, unless sooner vacated, the suspended part of the sentence would be remitted without further action.
5. On 16 November 1989, the applicant was placed on involuntary excess leave.
6. On 21 November 1989, the U. S. Army Court of Military Review affirmed the findings of guilty and the applicant's sentence.
7. On 21 February 1990, the applicant's bad conduct discharge was ordered executed.
8. On 1 March 1990, the applicant was discharged, pursuant to his sentence by court-martial, with a bad conduct discharge. He had completed a total of 3 years, 1 month, and 17 days of creditable active service.
9. The applicant provided five Training Progress Notes which show that while under the custody of the U. S. Army Correctional Activity, he performed his duties in an outstanding manner.
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 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.
11. Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. Trial by court-martial was warranted by the gravity of the offense 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.
2. The evidence of record shows that that part of the applicant's sentence adjudging confinement in excess of seven months was suspended. There is no evidence to show that his sentence to a bad conduct discharge was suspended. The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.
3. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20090004076
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