IN THE CASE OF:	  

		BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090005704 


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, that his bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, he had a lot of family problems and he had informed his chain of command that it would be in the best interest of the Army if he got out.  However, when he was told he could not get out, he began drinking and using marijuana, which is the only way he knew to be discharged. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 he enlisted in the Regular Army (RA) and entered active duty on 21 October 1987.  He was trained in and awarded military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).  His record documents no acts of valor or significant achievement.

3.  On 21 September 1988, a Special Court-Martial (SPCM) found the applicant guilty of violating Articles 86, 134, and 112a of the Uniform Code of Military Justice (UCMJ) as follows:  Article 86, by being absent without leave (AWOL) from 11-17 August 1988; Article 134, by breaking restriction; and Article 112a, for possessing and wrongfully using marijuana.  The resultant sentence was 75 days of confinement (credited with 35 days of pre-trial confinement against the sentence to confinement), a forfeiture of $447.00 per month for four months, and a BCD.

4.  On 22 January 1990, SPCM Order Number 12, issued by Headquarters, U.S. Army Training Center, Fort Dix, NJ, directed that, Article  71(c) of the UCMJ having been complied with and the sentence having been affirmed, the BCD portion of the applicant’s sentence be duly executed.  On 15 March 1990, the applicant was discharged accordingly.

5.  The DD Form 214 issued to the applicant upon his discharge shows he was separated under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of a court-martial and that he received a BCD.  This document also shows he completed a total of
2 years, 4 months, and 25 days of creditable active military service.  

6.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge (DD) or a BCD.  It stipulates, in pertinent part, that a Soldier will be given a DD or a BCD pursuant only to an approved sentence of a general or a special court-martial, and that the appellate review must be completed and affirmed before the sentence is 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 contends that he began drinking and using marijuana because he had family problems and he was told he could not get out of the Army by his chain of command, which was the only way he knew to get out of the Army, was carefully considered.

2.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  His record reveals no acts of valor or significant achievement and although he may have had family problems at the time, his overall record of service is not sufficiently meritorious to support an upgrade of his BCD given the number and gravity of the offenses that resulted in his court-martial conviction.  Therefore, there is an insufficient evidentiary basis to support clemency in this case.  

3.  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.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily 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)                                         AR20090005704



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ABCMR Record of Proceedings (cont)                                         AR20090005704



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