IN THE CASE OF:	  

		BOARD DATE:	    6 April 2010

		DOCKET NUMBER:  AR20090015555 


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 (BCD) to a general, under honorable conditions discharge (GD).

2.  The applicant states he is seeking an upgrade of his discharge to find a better job.  He claims he has paid his debt to his country and will continue to be a good person and citizen in his community and country.

3.  The applicant provides no documents 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 record shows he enlisted in the Regular Army on 20 July 1990.  He was trained in and awarded military occupational specialty (MOS) 62E (Heavy Construction Equipment Operator) and the highest rank/grade he attained and held on active duty was sergeant (SGT)/E-5.

3.  The applicant's record shows he earned the following awards:

* Army Commendation Medal
* Army Achievement Medal
* Army Good Conduct Medal
* National Defense Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Southwest Asia Service Medal with 3 bronze service stars
* Noncommissioned Officer Professional Development Ribbon
* Kuwait Liberation Medal-Kuwait
* Expert Marksmanship Qualification Badge with Rifle and Pistol Bars
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar
* Air Assault Badge
* Driver and Mechanic Badge with Driver "W" Bar

4.  The applicant's disciplinary history includes his accrual of 3 days of time lost due to being absent without leave (AWOL) from 23 to 25 June 1991.

5.  On 16 January 1997, a general court-martial (GCM) found the applicant guilty, pursuant to his pleas, of two specifications of violating Article 112a of the Uniform Code of Military Justice (UCMJ) by wrongfully distributing marijuana on or about 3 September 1996 and wrongfully distributing marijuana on or about
18 September 1996.  The resultant sentence was reduction to private (PV1)/E-1, forfeiture of all pay and allowances, confinement for 21 months, and a BCD.

6.  On 3 April 1997, in Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY, GCM Order Number 8, the appropriate convening authority approved only so much of the applicant's sentence that provided for reduction to PV1/E-1, forfeiture of all pay and allowances, confinement for 18 months, and a BCD; and directed all but the BCD portion be executed.

7.  On 7 November 1997, the United States Army Court of Criminal Appeals affirmed the findings and sentence in the applicant's case after determining they were correct in law and fact.

8.  Headquarters, United States Armor Center, Fort Knox, KY, GCM Order Number 82, dated 10 April 1998, confirmed the applicant's conviction and 
sentence had been affirmed pursuant to Article 66 of the UCMJ and directed, Article 71(c) of the UCMJ having been complied with, the BCD portion of the applicant’s sentence be executed.  On 17 June 1998, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant upon his discharge shows he completed 6 years, 9 months, and 29 days of creditable active service and accrued 388 days of time lost due to AWOL and confinement.  Item 18 (Remarks) of his DD Form 214 confirms his continuous honorable active duty service from 20 July 1990 through 30 November 1994.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated, in pertinent part, that a Soldier would be given a 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.

11.  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.

12.  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's contention his BCD should be upgraded to a GD so he can get a better job and because he has paid his debt back to his country and is now a good citizen has been carefully considered.  However, by law, any redress by this Board of the finality of a court-martial conviction under the UCMJ, is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

2.  The applicant's record shows he was generally a good Soldier and this service is appropriately recognized with the continuous honorable active duty service entry in item 18 of his DD form 214.  His post-service good citizenship as he presents it is also noteworthy.

3.  However, the evidence shows no error or injustice related to his GCM and/or his subsequent discharge and his record confirms he accrued 3 days of time lost due to AWOL prior to the court-martial conviction leading to his BCD.  Given this prior misconduct and the gravity of the offenses that resulted in his GCM conviction, his overall record of service and good post-service conduct are not sufficiently meritorious to support clemency and/or to grant his requested relief.

4.  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)                                         AR20090015555



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ABCMR Record of Proceedings (cont)                                         AR20090015555



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