IN THE CASE OF:	

		BOARD DATE:	14 July 2009  

		DOCKET NUMBER:  AR20090004761 


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 a general discharge, under honorable conditions or to an under other than honorable conditions discharge.

2.  The applicant states, in effect, that he believes the punishment for his past error to be considerably fulfilled and even more than deserved.  He states that he has paid in full for his misdemeanor with continued turndowns from prospective employers, even law enforcement training.  He further states that the punishment has far outweighed the crime and that he was informed by his lawyer that his discharge should be automatically upgraded.

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 records show he enlisted in the Regular Army on 15 November 1990.  He was awarded the military occupational specialty 63E, Abrams tank system mechanic.  The highest rank he attained while serving on active duty was the grade of private first class/pay grade E-3.  The available records do not show any significant acts of achievement or valor during his military service.

3.  Records show the applicant was convicted by a general court-martial for commission of the following five offenses during the period 1 June 1992 to 14 December 1992: failure to obey general regulation by wrongfully possessing smoking devices, wrongful distribution of marijuana, wrongful distribution of 1.0 gram of marijuana, possession of about 3.5 grams of marijuana, and wrongful use of marijuana.

4.  Headquarters, 1st Armored Division, General Court-Martial Order Number 19, dated 12 May 1993, indicates the sentence was adjudged on 16 March 1993.  The applicant's sentence consisted of reduction to the grade of private E-1, total forfeiture of all pay and allowances, confinement for ten months, 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.

5.  Headquarters, I Corps and Fort Lewis, General Court-Martial Order Number 82, dated 26 October 1993, executed the sentence of a bad conduct discharge, confinement for ten months, forfeiture of all pay and allowances, and reduction to the grade of private E-1, adjudged on 16 March 1993, as promulgated in General Court-Martial Order Number 19, Headquarters, 1st Armored Division.

6.  On 1 December 1993, the applicant was discharged under provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  The DD Form 214 the applicant was issued shows he completed 1 year, 3 months, and 26 days of active 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 USC 972: 930316-931201."

7.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted Soldiers.  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 3-7c, provides that an under other than honorable discharge is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court-martial 
when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army or when the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army, such as the use of force or violence to produce serious bodily injury or death, abuse of a position of trust, disregard by a superior of customary superior-subordinate relationships, acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army, or deliberate acts or omissions that seriously endanger the health and safety of other persons.

9.  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.

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 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's contention that his punishment has been fulfilled and even more than he deserved was carefully considered.



2.  The applicant was convicted by a general court-martial for wrongfully possessing smoking devices, two specifications of wrongful distribution of marijuana, possession of about 3.5 grams of marijuana, and wrongful use of marijuana.  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.  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 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.

4.  As for the applicant's assertion that his lawyer informed him that his discharge should be automatically upgraded, the Army does not have and has never had any policy to automatically upgrade a discharge based on the passage of time.

5.  The ABCMR does not upgrade properly issued discharges solely for the purpose of mitigating employment problems.

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)                                         AR20090004761



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ABCMR Record of Proceedings (cont)                                         AR20090004761



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