IN THE CASE OF:	  

		BOARD DATE:	         21 July 2009 

		DOCKET NUMBER:  AR20090004198 


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 his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant states the bad conduct discharge is the result of a mistake he made during his younger days in the military, helping another person out of a bad situation, and in turn, causing him irreparable damage.  He states he sold drugs to an undercover Narcotic Agent so the young lady he was helping would not be put in harm's way.  He states that he hopes the enclosed statements and awards that he has accumulated since his discharge show the positive direction his life has been going since that incident occurred.

3.  The applicant provides two Greater Los Angeles Healthcare System On-the-Spot Awards, a Department of Veterans Affairs (VA) Certificate of Appreciation, a Certificate of Attendance - Training for Hospice Unit, a New Directions - Completion Certificate, and three reference letters in support of this 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 military records show he enlisted in the Regular Army (RA) on 3 August 1981 with 3 years of prior active service and 3 years and 4 days of prior inactive service.  He was awarded military occupational specialty (MOS) 11C (indirect fire infantryman), and he was promoted to pay grade E-4.  The available records do not show any significant acts of achievement or valor during his military service.

3.  Headquarters, 7th Infantry Division (Light), Fort Ord, CA, Special Court-Martial Order Number 45, dated 24 April 1987, indicates the applicant was arraigned and tried on the specification of wrongful distribution of .566 grams of cocaine on 6 June 1986.  He was found guilty and the sentence was adjudged on 27 February 1987.  The applicant's sentence consisted of reduction to the rank/grade of private (PV1)/E-1, confinement for 90 days, and discharge from the Army with a bad conduct discharge.  The sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, ordered to be executed.

4.  Headquarters, 7th Infantry Division (Light), Fort Ord, Special Court-Martial Order Number 9, dated 3 February 1988, shows the applicant's sentence to a bad conduct discharge, confinement for 90 days, and reduction to PV1/E-1, adjudged on 27 February 1987, as promulgated in Special Court-Martial Order Number 45, Headquarters, 7th Infantry Division (Light), Fort Ord, dated 24 April 1987, had been affirmed and the bad conduct discharge was ordered to be executed.  That part of the sentence extending to confinement had been served.

5.  On 21 February 1989, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial.  The DD Form 214 the applicant was issued shows he completed 7 years, 4 months, and 7 days of active duty for this period of military service.  Item 24 (Character of Service) of this form shows the entry "Bad Conduct" and item 29 (Dates of Time Lost During This Period) shows the entry "870227-870511."

6.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.
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.

7.  Army Regulation 635-200, paragraph 3-11, provides 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.

8.  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.  The applicant was convicted by a special court-martial for wrongful distribution of cocaine.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  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.

3.  The applicant was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  Further, the applicant's discharge accurately reflects his overall record of service.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.
4.  The applicant's prior military service and his good post-service conduct were carefully considered.  However, these are not sufficiently meritorious to warrant upgrading a properly issued discharge.

5.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090004198



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ABCMR Record of Proceedings (cont)                                         AR20090004198



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