IN THE CASE OF:	  

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090017003 


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 a general discharge.

2.  The applicant states that he would like to have his discharge upgraded for employment reasons.  He contends that he made a mistake when he was 21 years old and he is now seeking a new career but his discharge hinders any job for which he applies.  He claims that he was getting out of the Army with an honorable discharge until he was set up (entrapped) by the U.S. Army Criminal Investigation Command (USACIDC, also known as CID).  He goes on to state that he pled guilty and served his time.  He also points out that he is applying for Department of Veterans Affairs (VA) benefits.

3.  The applicant provides an undated memorandum for separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for minor disciplinary infractions 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.  The applicant enlisted in the Regular Army on 12 August 1993 for a period of 4 years.  He successfully completed basic training and advanced individual training in military occupational specialty 75D (record specialist).

3.  On 7 March 1996, the applicant was convicted in accordance with his pleas by a general court-martial of violating a lawful general regulation by possessing drug paraphernalia, possessing marijuana, possessing cocaine, and distributing cocaine.  He was sentenced to be reduced to pay grade E-1, to forfeit $300.00 pay per month for 9 months, to be confined for 9 months, and to be discharged from the service with a bad conduct discharge.  On 10 May 1996, the convening authority approved the sentence.

4.  On 8 November 1996, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

5.  On 15 May 1997, the convening authority ordered the bad conduct discharge to be executed.

6.  Accordingly, the applicant was discharged with a bad conduct discharge on 16 June 1997 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 3 years, 2 months, and 20 days of creditable active service with 220 days of lost time.

7.  The applicant provided an undated memorandum for separation under the provisions of Army Regulation 635-200, chapter 14, for minor disciplinary infractions.  This memorandum states that action to separate him was initiated; the reasons for the proposed action were that he received a summary Article 15 and a company-grade Article 15 for failure to repair and being incapacitated; and that he had been counseled, yet his poor attitude and behavior continued.  The unit commander recommended that the applicant receive a general under honorable conditions characterization of service.

8.  Other than the applicant's submission, the available records fail to show that the applicant received nonjudicial punishment or that discharge proceedings under the provisions of Army Regulation 635-200, chapter 14, for minor disciplinary infractions were initiated against him.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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's contention that he was getting out of the Army with an honorable discharge until he was set up by CID relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in his general court-martial and appellate proceedings.

2.  The Board does not upgrade a discharge for the purpose of obtaining employment opportunities or VA benefits.
 
3.  Trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  The applicant's record of service included serious drug offenses for which general court-martial charges were preferred and the applicant had 220 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general 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.



      _________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)                                         AR20090017003



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017003



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1