IN THE CASE OF:	  

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090015326 


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 honorable.

2.  The applicant states, in effect, that he served in Operation Desert Storm in 1991 and received the National Defense Service Medal and the Southwest Asia Service Medal.  He states he was in the wrong place at the wrong time when he received a "dirty UA" [accepted as meaning a positive urinalysis]; however, he had not used illicit drugs.  He says he knew the person who did use drugs, but when questioned he would not provide the name to authorities so he was "tagged with a UA" for not cooperating.  He concludes by saying an upgrade to his discharge would let him know that his service was appreciated by his country.

3.  The applicant provides three character reference letters with 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.  After 2 years of service in the Indiana Army National Guard (INARNG), the applicant was separated on 1 October 1988 under honorable conditions as an unsatisfactory participant under the provisions of National Guard Regulation 
600-200 (Enlisted Personnel Management).  During his tenure with the INARNG, he completed basic and advanced individual training meeting qualifications for military occupational specialty 91B (Medical Specialist).  He enlisted in the Regular Army on 1 February 1990 for a 4-year period of service.

3.  The applicant was assigned to Headquarters and Headquarters Company, 6th Battalion, 6th Infantry Regiment, in the Federal Republic of Germany.  He served in Southwest Asia during Operation Desert Storm and served in two campaigns.  There are no reported acts of valor or heroism found in his official military personnel file.

4.  On 16 January 1992, the applicant was convicted at a general court-martial in the Republic of Germany for two specifications of wrongful use of hashish, one specification of wrongful use of marijuana, two specifications of wrongful distribution of hashish, one specification of wrongfully appropriating property of the U.S. Government, and one specification of failure to go to his appointed place of duty.  He was sentenced to a bad conduct discharge, 4 years confinement, total forfeitures of pay and allowances, and reduction to private/pay grade E-1.

5.  On 25 March 1992, the convening authority approved the sentence.  On 13 July 1992, the U.S. Army Court of Military Review affirmed the findings and sentence.  On 10 March 1993, the U.S. Army Court of Military Appeals affirmed the decision of the U.S. Army Court of Military Review.

6.  Accordingly on 2 July 1993, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations) based on his conviction by a court-martial.  His service was characterized as bad conduct.  His net active service was 1 year, 11 months, and 15 days with 534 days of time lost from 16 January 1992 to 2 July 1993.

7.  In support of his application, the applicant provides three character reference letters from his wife, pastor, and presumably a friend, for the letter is unsigned.  These letters state he has been a member of his church supporting the youth by teaching Sunday school.  He has been involved with a community-mentoring program for young adults and he is liked by all.  His wife states they have been together for over 13 years and that he is the father of her five children.  She says he is a loving, gentle, and kind man who often takes on additional responsibilities.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

9.  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.

10.  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.

11.  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.  The applicant contends that his bad conduct discharge should be upgraded.

2.  The evidence shows the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  The conviction and discharge were effected in accordance with applicable law and regulations and 


the discharge appropriately characterizes the misconduct for which he was convicted.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized judgment of the members of the court-martial.

3.  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.  The ABCMR does not upgrade discharges based solely on the passage of time.

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.

5.  While the applicant's post-service demeanor and work in his community is commendable, it is not sufficient to warrant upgrading a properly issued discharge.

6.  The applicant has not submitted any evidence to support his contention that he did not use or distribute illegal drugs.

7.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to general under honorable conditions or to fully honorable.

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.



      _________________________
                 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)                                         AR20090015326



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ABCMR Record of Proceedings (cont)                                         AR20090015326



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