IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010594 


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 an upgrade of his bad conduct discharge (BCD) to honorable.

2.  He states he now realizes his mistake and the many lives he messed-up, including his own.  During his service, he saved a Soldier's life on an airborne jump at the Fort Bragg Sicily Drop Zone.  Currently he is pursuing a life in the medical field and he would like to enlist.  His dumb decision when he was young is haunting him still today.  He will not down play what he has done, it was terrible, and he had no concern for his future.  Since then he has twice tried to enlist in the Army to no avail.  At this time, his country and countrymen are in a crisis and there is nothing he can do but idly watch.

3.  He provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), which is accepted as an application to this Board.

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 e 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 military records show he enlisted in the Delayed Entry Program on 6 July 1998.  He enlisted in the Regular Army in pay grade E-2 on 29 July 1998 for 3 years.  He completed training and was awarded military occupational specialty 81L (Lithographer).  The highest rank he attained was pay grade E-3.

3.  In a memorandum for record, dated 18 July 2001, his company commander stated the applicant participated in an airborne operation on the Normandy Drop Zone with Corps Artillery.  The applicant landed on the drop zone near a Soldier who appeared injured.  Upon investigation, the applicant found that the other Soldier had stopped breathing and he administered cardiopulmonary resuscitation until medics arrived.  The artillery Soldier survived, likely as a result of the applicant's quick actions.

4.  On 31 July 2001, he was convicted pursuant to his pleas by a general court-martial of one specification each of wrongful distribution of 118 grams of marijuana on or about 1 March 2001, 90 grams of marijuana on or about 26 March 2001, and 119 grams of marijuana on or about 27 March 2001.  He was sentenced to confinement for 45 months and to be discharged from the service with a BCD.

5.  In a petition for clemency memorandum for the XVIII Airborne Corps and Fort Bragg Commander, dated 16 August 2001, the applicant's counsel requested disapproval of any confinement in excess of 39 months.  Counsel stated the applicant readily accepted responsibility for his misconduct and had taken steps to change.  The applicant grew up in a drug-filled environment which exposed him to controlled substances at an early age.  Specifically, his mother regularly used marijuana and her use led to his becoming drug-dependent by the time he was 16 years old.  After using marijuana regularly for a few years, the applicant decided that he wanted to get help for his addiction.  Thus, he elected to join the Army because he was aware of the Army's policy on drug use.  When he explained his addiction to the recruiter, the recruiter merely told him to refrain from using drugs until after he enlisted.  The recruiter did nothing to deter the applicant from joining while addicted to drugs, nor did he assist him in getting help for that addiction.

6.  Counsel also stated the applicant volunteered for various programs and courses designed to assist in his rehabilitation since his confinement.  By being 

convicted by a court-martial, the applicant now has a permanent Federal conviction on his record which would cause substantial prejudice and difficulties in the future.  The applicant is aware of the seriousness of the offenses for which he has been convicted; however, there is much more to him than what appears on his criminal record.  Counsel further states the applicant made a positive contribution to his unit by saving the life of a fellow Soldier during an airborne operation.  Although his actions that day were meritorious, they were ignored and he was never commended.  The Army was quick to reprimand or punish the applicant for his mistakes, yet the Army never acknowledged his contributions or life-saving efforts.  Counsel requested that the applicant's heroism displayed on the drop zone be appreciated by eliminating 6 months from his confinement sentence.

7.  On 23 August 2001, his sentence was approved and, except for the sentence to a BCD, ordered executed.  He was credited with 124 days of pretrial confinement against the sentence to confinement.

8.  In June 2003, the U.S. Army Court of Criminal Appeals approved the findings of guilty, found the sentence correct in law and fact, and affirmed the sentence.  On 26 June 2003, the U.S. Court of Appeals for the Armed Forces denied his petition for a review.

9.  He was discharged on 16 July 2003 in pay grade E-1 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of a conviction by court-martial.  He was issued a BCD.  He was credited with 2 years, 11 months, and 23 days of net active service with lost time from 31 July 2001 to 15 July 2003.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

11.  Army Regulation 635-200, paragraph 3-7a, defines an honorable discharge as a separation with honor.  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 inappropriate.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted pursuant to his guilty pleas by a general court-martial on 31 July 2001.  He was discharged on 16 July 2003 pursuant to the approved sentence of a general court-martial.  His trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  He failed to submit evidence that would support a change to his BCD.  There is no evidence to show his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.  He provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations with due process.

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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to honorable or general under honorable conditions.


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)                                         AR20100010594



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ABCMR Record of Proceedings (cont)                                         AR20100010594



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