IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007203 


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.  

2.  The applicant states, in effect, that other Soldiers with the same infractions were given a GD.  He does not believe his punishment fit the crime.  He contends that his good years of service and the fact that he earned the Army Good Conduct Medal show that he worked hard to attain the rank of sergeant.  He adds that he completed the Primary Leadership Development Course and the Basic Noncommissioned Officer Course.

3.  The applicant states he has not been in any type of trouble for over 18 years.  He has furthered his education and he has reached the upper levels of management in all of his jobs since his discharge.  He states that he has been working with a recruiter so that he can serve his country again by being a member of the U.S. Army Reserve (USAR).  He pleads for the Board to allow him to make up for the mistakes of the past and to become a Soldier again.  He does not want a mistake he made many years ago to become a lifelong sentence. 

4.  The applicant did not provide any documentation in support of his case. 






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 DD Form 4 (Enlistment/Reenlistment Document) shows he enlisted in the USAR for a period of 6 years on 21 October 1983.  This form further shows he enlisted in the Regular Army on 26 June 1984 for a period of
3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 52F (Turbine Driven Generator Repairer).  On 30 October 1986, he voluntarily extended his 3-year enlistment for a period of 19 months to meet the service remaining requirement for overseas assignment with dependents.  On 13 October 1988, he reenlisted for a period of 
6 years. 

3.  Headquarters, Fort Carson, CO, 4th Infantry Division, Special Court-Martial Order Number 6, dated 26 March 1990, indicates the applicant was convicted by a special court-martial under the Uniform Code of Military Justice (UCMJ), for violation of Article 107 for giving a false official statement on or about 
4 December 1989; violation of two specifications under Article 112a for wrongful use of cocaine on or about 1 and 2 December 1989; and a violation of Article 134 for false swearing on or about 10 January 1990.  He was sentenced to reduction to the rank/pay grade of private/E-1; a forfeiture of $400.00 pay for 5 months, confinement for 5 months, and a BCD.  

4.  On 26 March 1990, his sentence was approved.  The convening authority suspended the applicant's confinement and forfeitures in excess of 4 months.
On 29 June 1990, the U.S. Army Court of Military Review affirmed the findings and the sentence.  On 28 November 1990, the applicant's petition for review was denied.



5.  On 24 January 1991, the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Separations), section IV, chapter 3 with a Bad Conduct Discharge Certificate.  He had completed 6 years, 3 months, and 19 days of active service.  He also had 100 days of lost time due to being in military confinement and 205 days of excess leave. 

6.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 
15 year statute of limitation.

7.  Army Regulation 635-200 governs the separation of enlisted Soldiers on active duty.  Paragraph 11-2 states that a member will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed.

8.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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.

9.  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.

10.  The Manual for Courts-Martial (MCM) provides the maximum sentence that may be imposed if convicted at trial by court-martial.  It provides, in pertinent part, that the maximum sentence that may be imposed for conviction by a special court-martial for a single violation of:

   a. Article 107 for false official statements, is a BCD, a forfeiture of all pay and allowances, and confinement for 6 months; 
   
   b. Article 112a for wrongful use of cocaine, is a BCD, a forfeiture of all pay and allowances, and confinement 6 months; and 
   
   c. Article 134 for false swearing, is a BCD, a forfeiture of all pay and allowances, and confinement for 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his service achievements, post-service achievements and training should be sufficient to warrant upgrading his BCD to a GD is not supported by the available evidence.

2.  The evidence shows the applicant was tried and convicted for two specifications of drug-related offenses, one specification for false swearing and one specification for giving a false official statement by a special court-martial on 
26 March 1990 and discharged with a BCD.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  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 MCM, in effect at that time, shows the applicant's punishment for the offenses of which he was convicted was within the limitations provided by the MCM.

5.  The applicant's training, service achievements, and post-service achievements were considered and after a thorough review of the applicant's entire record of service it was determined it was not sufficient to warrant clemency in this case.  Given the seriousness of the offenses for which he was convicted his service was not satisfactory.  Thus he did not meet the criterion for a GD, his BCD is equitable, and there is no basis for changing his discharge as requested.

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)                                         AR20100007203



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ABCMR Record of Proceedings (cont)                                         AR20100007203



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