BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090009719 


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 expunged from his record and/or that his BCD be upgraded.  

2.  The applicant states, in effect, he has not been the subject of a criminal investigation and has been a man of good character since his discharge.  He believes his good post-service good conduct and the length of time that has passed since his discharge should support expunging the BCD.  He also indicates his current job requires a background investigation.  

3.  The applicant provides a self-authored statement and three third-party character references 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.  Title 10 of the U.S. Code, Section 1552, the law governing the operations of the ABCMR states, in effect, that court-martial convictions stand as adjudged or modified by appeal through the judicial process and 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.  Given the governing law prohibits the ABCMR from setting aside (expunging) 
court-martial records, the applicant's request will be treated as a request for an upgrade of his BCD as a matter of clemency.  Expunging the court-martial record will not be addressed further in this Record of Proceedings given it is not within the purview of this Board.  

3.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 13 April 1984.  He was trained in and awarded military occupational specialty 62B (Construction Equipment Repairman).  His record shows he completed two overseas tours in Korea and that during his active duty tenure he earned the Army Good Conduct Medal (1st Award), Army Service Ribbon, Overseas Service Ribbon (2nd Award), Driver and Mechanic Badge with 
W (Driver) Bar, and Marksman Marksmanship Qualification Badge with 
Rifle Bar.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 28 May 1982, for failing to go to his appointed place of duty at the time prescribed.  His punishment for this offense was a forfeiture of $150.00 and 14 days of restriction and extra duty.

5.  On 8 September 1982, a special court-martial (SPCM) found the applicant guilty of the following six specifications of violating a lawful general regulation: by wrongfully selling a controlled substance (methamphetamine) on or about 
30 June 1982; by wrongfully possessing a controlled substance (methamphetamine) on or about 30 June 1982; by wrongfully selling a controlled substance (methamphetamine) on or about 1 July 1982; by wrongfully possessing a controlled substance (methamphetamine) on or about 1 July 1982; by wrongfully selling a controlled substance (methamphetamine) on or about 
16 July 1982; and by wrongfully possessing a controlled substance (methamphetamine) on or about 16 July 1982.  

6.  The resulting sentence approved by the convening authority in Headquarters, 19th Support Command, SPCM Order Number 12, dated 22 October 1982, was a reduction to private/E-1 (PV1), a forfeiture of $367.00 pay for 4 months, confinement at hard labor for 4 months (suspended until 7 March 1983), and a BCD. 

7.  On 25 February 1983, the U.S. Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact and, having determined on the basis of the entire record that they should be approved, affirmed the findings of guilty and the sentence in the applicant's case.

8.  United States Army Correctional Activity, Fort Riley, Kansas, SPCM Order Number 334, dated 16 June 1983, directed that, Article 71(c ) having been complied with, the sentence as modified be duly executed.  On 21 July 1983, the applicant was discharged with a BCD accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant, on 21 July 1983 shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial after completing 6 years, 6 months, and 6 days of creditable active military service and accruing 60 days of time lost due to confinement.  It further shows that he held the rank of PV1 at the time and that he received a BCD.

10.  The applicant provides three character references from an attorney, his pastor, and his supervisor.  These individuals all attest to the fact the applicant is a good family man and productive citizen and that he is of good character.  
There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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 BCD.  It stipulates, in pertinent part, that a Soldier will be given a DD or BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his good post-service conduct and the length of time since his discharge should support an upgrade of his BCD was carefully considered.  However, there is insufficient evidence to support clemency in this case.  

2.  In this case, the evidence 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 it shows he had a disciplinary history prior to committing the offenses that resulted in his discharge.  Given the applicant's record of service, and the gravity of the offenses for which he was convicted, his post service good conduct alone does not support clemency in this case.  

3.  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)                                         AR20090009719



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ABCMR Record of Proceedings (cont)                                         AR20090009719



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