IN THE CASE OF:	  

		BOARD DATE:	    9 September 2010

		DOCKET NUMBER:  AR20100009882


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:

   a.  An upgrade of his Bad Conduct Discharge (BCD) to either a General Discharge (GD) or an Honorable Discharge (HD).
   
b.  Change of his narrative reason for separation to Secretarial Authority.

c.  Change of his separation code to "LIF."

2.  The applicant states his request is based on equitable considerations and post-service conduct.  He explains:

	a.  He entered the Army on 22 June 1989 and was trained in military occupational specialty (MOS) 67V (Observation/Scout Helicopter Repairer).  He served at Fort Hood, TX and Illesheim, Germany.  He also served in Southwest Asia from 8 May to 30 September 1991.

	b.  On 23 October 1992, he was convicted by a Special Court-Martial and sentenced to reduction to private, a forfeiture of all pay and allowances, 5 years in confinement [pretrial agreement for 1 year of confinement], and a BCD.  A Stipulation of Fact reveals he purchased 10 doses of suspected lysergic acid diethylamide (LSD), he used the suspected LSD, and he distributed the suspected LSD to other Soldiers.  It was later determined that the suspected LSD was fake.

	c.  He was confined at the US Army Confinement Facility, Mannheim, Germany.  When his confinement was up, he was transferred to the Personnel Control Facility, Fort Dix, NJ and discharged with a BCD on 12 August 1993.

	d.  Post-service, he worked in the aviation field as an airframe and power plant mechanic.  In March 1998, he worked for a company with U.S. Government contracts and deployed to Panama, Colombia, Peru, and Bolivia in support of U.S. Army operations.  In 2001, he worked for a company supporting the U.S. Department of State in Colombia and other areas of South America.

	e.  He received his private pilot's license in 2002.  In 2004, he deployed to Balad, Iraq for 8 months as an airframe and power plant mechanic.  From
2005-2007, he worked for a company as a flight line mechanic for UH-60 Blackhawk helicopters.

	f.  He obtained an Associate's Degree from Embry-Riddle Aeronautical University.

	g.  He has received letters and certificates of appreciation and achievement from the 204th Military Intelligence Battalion, Howard Air Force Base, Panama; Headquarters, US Army Intelligence and Security Command; and the Joint Task Force Bravo, Iraq.

3.  The applicant further states he has spent the better part of the last 8 years working in South America, Iraq, and Afghanistan as a civilian in support of military operations.  Although his application is not timely filed, he sees no prejudice to the Government to waive the statute of limitations in this case.

4.  The applicant provides:

* A supplemental statement of 14 typewritten pages
* Member copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Index page of his Record of Trial
* DD Form 458 (Charge Sheet)
* 22 October 1992 Stipulation of Fact
* Civilian and military training certificates and certificates of appreciation
* Associate Degree from Embry-Riddle Aeronautical University
* Private Pilot License
* Reference letters
* Credit scores [to show credit worthiness]


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 US Army Reserve Delayed Entry Program (DEP) for 8 years on 29 June 1988.  On 21 June 1989, he was discharged from the DEP and enlisted in the Regular Army for 5 years on 22 June 1989.  His Record of Assignments (Block 35) on his DA Form 2-1 (Personnel Qualification Record) shows:

Effective Date
Duty MOS
Principal Duty
Organization & Station
29 Jun 1988

Delayed Entry Program

22 Jun 1989

Enlistment
42nd AG Bn (Reception), Ft. Dix, NJ
31 Jun 1989
67VOO
Basic Combat Training
Co B, 2nd Bn, 39th Inf, Ft. Dix, NJ
24 Aug 1989

Casual-En Route
En Route to Ft. Rucker, AL
25 Aug 1989
67VOO
Advanced Individual Training
Co A, 1st Bn, 13th Avn Rgt, Ft. Rucker, AL
09 Nov 1989
67VOO
Casual-En Route
En Route to Ft. Hood, TX
01 Dec 1989
67V1O
Observation Helicopter Rep
HSC, Tng Bn Three, Ft. Hood, TX
18 Jun 1990
67V1O
Observation Helicopter Rep
HSC, 6th Bn, 6th Cav, Ft. Hood, TX
26 Oct 1990

Casual
En Route to Germany
09 Nov 1990
67V1O
Observation Helicopter Rep
HHT, 6th Bn, 6th Cav, Illesheim, Germany
23 Oct 1992

Imprisonment
Mannheim, Germany
21 Jul 1993

Present for Duty
US Army Personnel Control Facility, Ft. Dix, NJ
12 Aug 1993

Discharged

3.  In Germany, the applicant was tried by court-martial.  The stipulation of fact indicated that during December 1991-January 1992 the applicant's roommate told the applicant about a Soldier who had LSD for sale.  The applicant obtained 10 small postage stamp-sized tabs of paper containing a substance purported to be LSD.  He brought the tabs back to his barracks room and placed them in a shared refrigerator.  His roommate later paid $50 to the supplier of the "LSD."  The applicant and his roommate then drove to Ansbach.  On the way, they each ingested a tab of "LSD."  In Ansbach, they met three other Army friends and gave each a tab of "LSD."  They then shared a tab.  The applicant and his roommate had previously used LSD and knew the effects.  The tabs they purchased did not provide the anticipated effects because they were fake tabs.  The applicant and, presumably, his roommate came to the attention of their chain of command or law enforcement and were apprehended and charged with possession, use, and distribution of LSD.  The applicant was found guilty of attempting to wrongfully use, possess, and transfer LSD.  He was sentenced to a BCD, 12 months in confinement, total forfeiture of all pay and allowances, and reduction to private.

4.  After serving his sentence to confinement, the applicant was discharged with a BCD on 12 August 1993.  In civilian life, he went to work for Access Communications until October 1994 when he utilized his military training to obtain employment with Northwest Airlines as an airframe and power plant mechanic.  He has worked in the aircraft maintenance field since this time.

5.  The applicant has served in various overseas civilian contractor assignments with the US military.  Evidence shows he has served in South America and Iraq in support of the US military.  He has received certificates of appreciation and achievement.

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

7.  Army Regulation 635-200, Chapter 5, Section II states the separation of Soldiers for the convenience of the Government is the prerogative of the Secretary of the Army (SA).  Except as delegated by this regulation or by special DA directives, it will be accomplished only by the SA's authority.  The separation of any Soldier of the Army under this authority will be based on an SA determination that separation is in the best interests of the Army.  Unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions or, if in an entry level status, uncharacterized.

8.  Army Regulation 635-200 provides guidance on the characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states 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.
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 change a discharge due to matters which should have been raised in the appellate process, 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.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations which identify reasons for and types of, separation from active duty.

   a.  The SPD code of "JJD" is the correct code for Soldiers separated by discharge under the provisions of Army Regulation 635-200, Chapter 3, "as a result of court-martial."

   b.  The SPD code of "JFF" is the correct code for Soldiers separated by discharge under the provisions of Army Regulation 635-200, Chapter 5, Section II, as "directed by service secretary."

	c.  The SPD code requested by the applicant, code "LIF," does not exist in regulations for the period covering the applicant's discharge.  The code of "LFF" is the code for Soldiers separated by involuntary release or transfer under the provisions of Army Regulation 635-200, Chapter 5, Section II, as "directed by service secretary."

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his discharge, change of the reason for separation, and change of his SPD code.





2.  The applicant was a school-trained helicopter mechanic.  He was convicted of drug-related offenses and sentenced to confinement and a BCD.  The BCD was executed following completion of all appellate reviews.

3.  In civilian life, the applicant used his Army-acquired skills to obtain employment.  Several of the companies for which he worked had US Government contracts and the applicant went to remote areas to work on Government aircraft.

4.  The applicant's post-service conduct has been evaluated and determined to be insufficient to overcome the circumstances of his BCD.  Although he has spent several years in South America and Southwest Asia performing maintenance on military aircraft, presumably, he has been compensated for that work.

5.  The applicant has provided no justification for an upgrade of his BCD as a matter of clemency.

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)                                         AR20100009882



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ABCMR Record of Proceedings (cont)                                         AR20100009882



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