IN THE CASE OF:	  

		BOARD DATE:	        25 August 2009

		DOCKET NUMBER:  AR20090004758 


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 an upgrade of his bad conduct discharge.

2.  The applicant states he served over a year in confinement, lost his G.I. Bill, and cannot get work in the current economy with his bad conduct discharge.   He states he has paid a dear price and asks for forgiveness. 

3.  The applicant provides no additional documentary evidence 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 2 April 1987.  He was awarded the military occupational specialty (MOS) 16S (Man Portable Air Defense Crewmember (MANPADS)) and he was promoted to pay grade E-3, which is the highest grade he held during his active duty service.  The available records do not show any significant acts of achievement or valor during his military service.

3.  Headquarters, 8th Infantry Division (Mechanized), General Court-Martial Order Number 67, dated 30 November 1989, shows the applicant was arraigned on the specifications of on divers occasions between on or about 1 October 1988 and on or about 24 February 1989, distributing unknown amounts of marijuana in the hashish form; and on divers occasions between on or about 1 June 1988 and on or about 1 March 1989, wrongfully using marijuana.  He was found guilty on all charges and specifications and sentence was adjudged on 29 September 1989.  He was sentenced to forfeiture of all pay and allowances, confinement for 14 months, and discharge from the Army with a bad conduct discharge.  The sentence was approved and, except for the part of the sentence pertaining to a bad conduct discharge, ordered to be executed.
 
4.  The findings and sentence were affirmed on 5 September 1990.  U.S. Army Correctional Brigade, General Court-Martial Order Number 757, dated
4 December 1990, shows the applicant's sentence to a bad conduct discharge, confinement for 14 months, and forfeiture of all pay and allowances, adjudged on 29 September 1989, as promulgated in General Court-Martial Order Number 67, Headquarters, 8th Infantry Division (Mechanized), dated 30 November 1989, having been affirmed, the bad conduct discharge was ordered to be executed.  That part of the sentence extending to confinement had been served.

5.  On 11 December 1990, 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 (Certificate of Release or Discharge from Active Duty) the applicant was issued shows he completed 2 years, 9 months, and 18 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 "(UNDER 10 U.S.C. 972) -- 890929-900401.  (NOT CHARGEABLE UNDER 10 U.S.C. 972) -- 900402-900816."

6.  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.  
7.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

8.  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.

9.  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.  The applicant was convicted by a general court-martial for distributing unknown amounts of marijuana in the hashish form and wrongfully using marijuana over a period of several months.

2.  The applicant was administered a bad conduct discharge pursuant to an approved sentence of a general 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.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  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.  Therefore, he is not entitled to an upgrade of his discharge.

3.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.  Given the seriousness of the offenses for which the applicant was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade his discharge.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  The Board does not upgrade properly issued discharges for the sole purpose of enhancing an applicant's employment prospects or establishing eligibility for other programs or benefits.

6.  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)                                         AR20090004758



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ABCMR Record of Proceedings (cont)                                         AR20090004758



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