IN THE CASE OF:	  

		BOARD DATE:	       14 OCTOBER 2009

		DOCKET NUMBER:  AR20090008738 


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 to a fully honorable discharge. 

2.  The applicant states that he was young and immature at the time of his offense.  However, he had outstanding conduct and efficiency ratings and he was a well-rounded Soldier with a great career ahead of him.  He also states that he believes the punishment he received was severe for the type of Soldier he was and that he should not have to suffer for the rest of his life for one mistake.  He also states that other Soldiers committed similar or even worse offenses and they did not get the same punishment.  

3.  The applicant provides eight certificates of achievement for appreciation or participation; seven certificates of medical training, diplomas, or certification; a copy of his marriage certificate; a copy of his basic combat training completion certificate; a copy of his general education completion notice; a copy of his Army Physical Fitness Test scorecard; and a copy of his Combat Pistol Qualification Course Scorecard in support of his request.

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 30 October 2001.  He completed basic combat and advanced individual training and was awarded military occupational specialty 91W (Health Care Specialist).  He was promoted through the ranks to specialist/E-4 and was assigned to Headquarters and Headquarters Company, 14th Engineer Battalion, 555th Combat Engineer Group, 4th Infantry Division, Fort Hood, TX. 

3.  The applicant's records further show he completed the Emergency Medical Technician Course, the Trauma AIMS Course, the Advanced Pre-Hospital Trauma Life Support Course, the Medical Threat Assessment Course, and several other medically-related training courses.

4.  The applicant's records also show he served in Iraq for an unknown period and that he was awarded the National Defense Service Medal and the Army Service Ribbon.  He also received multiple certificates of achievement, appreciation, and/or recognition throughout his military service.  

5.  On 30 January 2004, the applicant pled guilty at a general court-martial to one specification of wrongfully using diazepam, a schedule IV controlled substance, on or about 8 September 2003; one specification of wrongfully possessing diazepam, a schedule IV controlled substance, on or about 9 September 2003; and one specification of wrongfully distributing up to 100 milligrams of diazepam, a schedule IV controlled substance, on or about 9 September 2003.  The court sentenced him to confinement for 10 months, reduction to the rank of private (PVT)/E-1, and a bad conduct discharge.  The sentence was adjudged on 
30 January 2004 and was approved on 17 September 2004. 

6.  On 16 March 2005, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

7.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 117, dated 25 August 2005, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

8.  The applicant was discharged from the Army on 28 October 2005.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 3 years, 3 months, and 28 days of creditable military service.  He also had
244 days of lost time due to being in confinement. 

9.  The applicant submitted several certificates of achievement, appreciation, or participation, awarded throughout his military service, as well as several certificates of medical training, diplomas, or certification, as an indication of his successful military service. 

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 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.

11.  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.  

12.  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 Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to a fully honorable discharge.

2.  The applicant’s multiple certificates of achievement and/or recognition, several certificates of training and/or diplomas, and his combat service in Iraq were considered; however, they are not sufficiently mitigating to grant him the requested relief.  The applicant knowingly abused and distributed a scheduled IV controlled substance on numerous occasions.

3.  The applicant’s contention that other service members may have committed similar or worse offenses and received less severe punishment was also considered.  However, each case is considered on its own merits and the applicant has failed to demonstrate that he was treated unfairly given the circumstances in his case.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

4.  The available evidence shows the applicant’s trial by general 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 characterized 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.  This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  After a review of the applicant’s entire record of service, including his combat service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  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 has failed to submit evidence that would satisfy this requirement.  As a result, there is insufficient basis to upgrade the applicant's 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.



      _______ _   ___XXX____   ___
               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)                                         AR20090008738



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ABCMR Record of Proceedings (cont)                                         AR20090008738



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