IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090006275 


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 upgrade of his bad conduct discharge.  He also requests correction of block 12b (Separation Date this Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant essentially states that his discharge should be upgraded because he had no issues of misconduct prior to or after his court-martial.  He also contends that his discharge is unjust because he never received even one counseling statement from his noncommissioned officer or any corrective action for any misconduct.  He further asserts that there could have been other measures to lead up to a court-martial instead of how his situation was dealt with.  Additionally, he states that his date of discharge on his DD Form 214 is incorrect, as he was released from the military in 2004 and worked for the Federal government as a Wage Grade (WG) employee in 2005, but that his DD Form 214 shows that he was discharged in 2006.

3.  The applicant provides his DD Form 214 and DD Form 4/1 (Enlistment/ Reenlistment Document - Armed Forces of the United States); page one of Headquarters, Joint Readiness Training Center, Fort Knox. KY, General Court-Martial Order Number 11, dated 15 October 2003; a decision document, dated 25 July 2005, from the United States Army Court of Criminal Appeals; Headquarters, U.S. Army Armor Center, Fort Knox, General Court-Martial Order Number 195, dated 9 December 2005; orders, dated 23 January 2006, issued by the same headquarters, which discharged him from the Army on 27 January 
2006; two Standard Forms (SF) 50 (Notification of Personnel Action), with 
effective dates of 2 April 2006 and 14 August 2006, and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 that he enlisted in the Regular Army (RA) on 20 February 2002.  He completed initial entry training and he was awarded military occupational specialty (MOS) 92G (Food Service Specialist).  He was then reassigned to Fort Polk, LA for his initial permanent duty assignment.

3.  On 28 June 2003, the applicant was convicted by a general court-martial for wrongful use of marijuana between 15 October 2002 and 1 November 2002, wrongful use of marijuana between 9 December 2002 and 23 December 2002, wrongful use of methyolenedioxymethamphetamine between 9 December 2002 and 23 December 2002, wrongful use of marijuana between 8 January 2003 and 22 January 2003, and wrongful possession of a controlled substance.  He was sentenced to 9 months of confinement, forfeiture of all pay and allowances, reduction in rank and pay grade from private first class (PFC)/E-3 to private (PV1)/E-1, and to be discharged from the service with a bad conduct discharge.  His sentence was approved on this date and, except for the part of the sentence extending to a bad conduct discharge, it was ordered to be executed.  He was also placed in confinement on that day and subsequently transferred to the Regional Confinement Facility at Fort Knox.

4.  On 15 January 2004, the applicant was released from confinement and placed on excess leave pending appellate review of his case.


5.  On 25 July 2005, the United States Army Court of Criminal Appeals affirmed the findings of guilty against the applicant and his sentence.

6.  On 27 January 2006, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial order.  Block 18 (Remarks) contains the entry "Excess Leave (creditable for all purposes except pay and allowances) – 744 days:  2004/01/15 – 2006/01/27."  Block 24 (Character of Service) of his DD Form 214 shows that he received a bad conduct discharge.  Block 28 (Narrative Reason for Separation) of this same document has an entry of "Court-Martial, Other."

7.  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.

8.  Paragraph 3-7a of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) 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.

9.  Paragraph 3-7b of the same regulation 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.

10.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents that are furnished each individual separated from the Army and establishes standardized procedures for the preparation and distribution of these documents.  The purpose of a separation document is to provide the individual with documentary evidence of his/her military service.  It is a vital record for interested Government agencies which assist the veteran in obtaining the rights and benefits to which he/she is entitled.  Therefore, it is important that information entered is complete and accurate.  It also establishes standardized policy for the preparation of the DD Form 214.  It 
states, in pertinent part, that for block 12b, enter the Soldier's transition date.  This date may not be the contractual date if the Soldier is separated early, voluntarily extends, or is extended for make up of lost time, or retained on active duty for the convenience of the Government.

11.  Army Regulation 600-8-10 (Leaves and Passes) provides, in pertinent part, that excess leave is a nonchargeable absence granted for, in part, Soldiers awaiting a punitive discharge.  Excess leave is without pay and allowances.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded and that the date of his discharge shown on his DD Form 214 should be corrected.

2.  The applicant's contention that his discharge should be upgraded because he had no issues of misconduct prior to or after his court-martial was noted.  However, due to the seriousness of the offenses committed by the applicant, his command justifiably preferred charges against him for violations of the Uniform Code of Military Justice.

3.  The applicant’s entire record of service was considered; however, the fact that the applicant was tried and convicted by a general court-martial for offenses of the UCMJ shows that the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The evidence of record shows that the applicant was discharged pursuant to a duly reviewed and affirmed general court-martial order and that the applicant's records document no acts of valor or significant achievement.

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.  Additionally, while the applicant contends that he was released from the military in 2004, he was actually only placed on excess leave pending appellate review of his case.  As he was still a member of the Army after being placed on excess leave on 15 January 2004, albeit without pay and allowances, he was a member of the U.S. Army until he was effectively discharged on 27 January 2006.  As this is the correct date of separation shown on his DD Form 214, there is no basis for granting this portion of 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)                                         AR20090006275



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ABCMR Record of Proceedings (cont)                                         AR20090006275



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