IN THE CASE OF:
BOARD DATE: 3 September 2009
DOCKET NUMBER: AR20090006160
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, in effect, that he was immature and not mentally prepared for the Army and that he did not have enough discipline nor did he have a good decision-making process. He asks for this discharge upgrade so he can take full advantage of the help that is out there for him.
3. The applicant provides no additional documentary evidence 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 was born on 28 June 1980. He enlisted in the Regular Army on 5 June 1998 and trained as an infantryman.
3. On 7 July 2000, in accordance with his pleas, the applicant was convicted by a general court-martial of conspiring to distribute marijuana in December 1999, distributing marijuana in December 1999, using marijuana on or about 12 October 1999 and 22 November 1999, and desertion. He was sentenced to be confined for 14 months, to forfeit all pay and allowances, to be reduced to E-1, and to be discharged with a bad conduct discharge. The convening authority approved the sentence on 21 November 2000.
4. On 11 January 2001, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.
5. On 26 January 2001, the convening authority ordered the bad conduct discharge to be executed.
6. The applicant was discharged with a bad conduct discharge on 25 October 2001 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial. He had served a total of 2 years, 1 month, and 7 days of total active service with 464 days of lost time.
7. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 3 of this regulation states 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. 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 characterization of under honorable conditions may be issued only when the reason for the Soldiers separation specifically allows such characterization.
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. Age is not a sufficiently mitigating factor. The applicant was nearly 18 years of age when he enlisted. In addition, he served over 16 months of service prior to his misconduct.
2. A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs' benefits.
3. Trial by court-martial was warranted by the gravity of the offenses 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.
4. The applicant's record of service included one general court-martial conviction and 464 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.
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) AR20090006160
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