BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100012766 


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 to a general discharge.

2.  The applicant states:

* his discharge was deserved
* as time passed he changed his life
* he would like a second opportunity

3.  The applicant did not provide any documentary evidence 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 Regular Army on 7 March 1985.  

3.  On 21 November 1991, the applicant pled guilty and he was found guilty by a special court-martial (SPCM) at Fort Wainwright, AK, under the authority of Headquarters, 3rd Infantry Division for:

* wrongfully using cocaine
* two specifications of wrongfully using marijuana

4.  The SPCM sentence adjudged by a military judge sentenced the applicant to:

* confinement for 5 months
* a bad conduct discharge
* forfeiture of $500.00 pay per month for 5 months
* reduction to the grade of private (PV1)/E-1

5.  On 27 February 1992, the convening authority approved the sentence except for the part of the sentence extending to a bad conduct discharge.  

6.  On 21 September 1992, by SPCM Order Number 92, issued by Headquarters, U.S. Armor Center, Fort Knox, KY, the applicant's sentence pertaining to his confinement had been served and his bad conduct discharge was ordered to be duly executed.

7.  On 9 October 1992, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 3, by reason of as a result of court-martial, other.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at the time shows he completed 7 years, 2 months, and 28 days of total active service.  He had time lost from 21 November 1991 to 25 March 1992.  Additionally, his DD Form 214 shows in:

	a.  item 24 (Characterization of Service) the entry "BAD CONDUCT";

	b.  item 25 (Separation Authority) the entry "Army Regulation 635-200, Chapter 3, Section IV"; and

	c.  item 28 (Narrative Reason for Separation) the entry "AS A RESULT OF COURT-MARTIAL, OTHER."

8.  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.

9.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

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

	c.  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 records are 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by an SPCM and he received a bad conduct discharge.  Trial by an SPCM was warranted by the serious nature of the offenses for which the applicant was charged and convicted.  The sentence is commensurate with the misconduct for which the applicant was convicted.

2.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge 

may be upgraded by the Army Discharge Review Board (ADRB) within its 15-year statute of limitations or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.

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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100012766



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1