IN THE CASE OF:	

		BOARD DATE:	 3 December 2009 

		DOCKET NUMBER:  AR20090009788 


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 (BCD) be upgraded to a general discharge (GD), under honorable conditions and that all rights to which he may be entitled be restored.

2.  The applicant states that his discharge was inequitable because it was based on one isolated incident in 10 years of honorable service with no other adverse actions.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of a self-authored letter dated 14 May 2009, addressed “To whom it may concern,” attesting to the events that led to his discharge, his service while he was in the Army, and his post-service conduct; and seven letters from friends and associates attesting to his good character and post-service conduct.

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, as 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.  On 11 September 1979, the applicant enlisted in the Regular Army in Montgomery, Alabama, for 3 years, in the pay grade of E-1.  He successfully completed his training as a subsistence supply specialist.  He remained on active duty through a series of extensions and reenlistments and he was promoted through the ranks to the pay grade of E-6.

3.  The applicant’s records show that on 14 November 1985, the applicant enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) due to alcohol-related issues and that he satisfactorily completed the program on 2 January 1986.  Treatment records show that he was separated from his wife at the time of his enrollment in the ADAPCP.

4.  As a result of nonjudicial punishment (NJP) that was imposed against the applicant on a date that cannot be determined, he was reduced to the pay grade of E-5 on 15 September 1988.  However, the record of NJP explaining the incident(s) that led to the imposition punishment is not on file.

5.  On 31 March 1989, the applicant was convicted, pursuant to his pleas, by a general court-martial of wrongfully using lysergic acid diethylamide (LSD) on fifteen diverse dates between on or about 1 May 1988 and on or about 10 November 1988.  He was sentenced to a BCD, confinement for 2 years, a reduction to the pay grade of E-1, and a forfeiture of pay in the amount of $600.00 per month for 24 months.

6.  The convening authority approved the sentence as adjudged and except for the part extending to a BCD, the sentence was ordered executed.  The U.S. Army Court of Military Review affirmed the findings and sentence on 29 November 1989.

7.  On 6 June 1990, General Court-Martial Order Number 120, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, noting that the findings and sentence as approved by the convening authority had been affirmed, ordered that the BCD be executed.

8.  Accordingly, on 22 June 1990, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3-11, as a result of a duly 


reviewed and affirmed general court-martial conviction.  He had completed 9 years, 6 months, and 20 days of total active service and he had approximately 448 days of lost time due to being in confinement.  He was furnished a BCD.

9.  In the self-authored letter that the applicant submits dated 14 May 2009, he explains, in effect, that his problems were the result of his wife leaving him and filing for divorce.  He states that he was depressed over the situation and that he made some very unwise decisions which led to confinement and a discharge.  In the letter he refers to his new life with God, his new wife and Christian friends and he states that he is asking for the same rights as other American citizens.  In his letter, the applicant apologizes for the mistakes that he has made and he states that he would be willing to serve his country, if requested.

10.  The seven letters that he submits are from friends, associates, and church members attesting to his good character and his post-service conduct.  

11.  Title 10, U. S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides, in pertinent, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

13.  Paragraph 3-7a of Army Regulation 635-200 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.  

14.  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 BCD should be upgraded to a GD and that all of his rights should be restored.

2.  His contentions have been considered.  However, his records do not show that he served under honorable conditions.  

3.  While the record of NJP is not on file, his records show that NJP was imposed against him which resulted in his being reduced to the pay grade of E-5 on 15 September 1988.  He successfully completed ADAPCP for an alcohol problem and he was subsequently convicted by a general court-martial of wrongfully using LSD on 15 diverse dates.

4.  The letters attesting to is good character and post-service conduct have also been considered.  However, they are not sufficiently mitigating to warrant the requested relief.  There is no error or injustice in the type of discharge that he was furnished and there is no indication of procedural errors which would have jeopardized his rights.

5.  The applicant is commended on his good post-service conduct; however, while he was convicted only once by a general court-martial, he used LSD on 15 different dates.  Therefore, his discharge was not the result of one isolated incident as he now contends and considering the nature of his offenses, the character of his service is not too harsh.  

6.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090009788



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ABCMR Record of Proceedings (cont)                                         AR20090009788



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