IN THE CASE OF:	  

		BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100017096 


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, in effect, that his bad conduct discharge (BCD) be upgraded to a general discharge.  

2.  The applicant states he has lived a trouble-free life since being discharged and he has become a model citizen.  He further states he was young and made an error for which he has paid.  

3.  The applicant provides copies of a National Archives Form 13038 (Certification of Military Service) and a DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 27 December 1978.  After completing initial entry training, he was awarded military occupational specialty (MOS) 63H (Automotive Repairer), later reclassified as Track Vehicle Repairer.  He also later served in MOS 63W (Wheel Vehicle Repairer).  

3.  On 10 December 1987, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful use of cocaine.  His punishment was reduction to private/E-1, a forfeiture of $329 pay for 2 months, and extra duty for 45 days.  On appeal, the portion of the punishment pertaining to a forfeiture of pay was suspended.  

4.  General Court-Martial Order Number 28, issued by Headquarters, 7th Infantry Division (Light) and Fort Ord, CA, on 21 April 1988, shows he pleaded guilty to two specifications of violating Article 112a, UCMJ, for wrongfully distributing 2 grams of cocaine on 4 February 1988 and 24 February 1988.  He was sentenced to a BCD, confinement for 8 months, and forfeiture of all pay and allowances.  The sentence was approved with a reduction in confinement to 6 months less time already served.  The U.S. Army Court of Military Review affirmed the findings and sentence on 20 July 1988.

5.  General Court-Martial Order Number 289, issued by the U.S. Army Correctional Activity, Fort Riley, KS, on 14 March 1989, shows the sentence was affirmed and the BCD was ordered to be executed.  On 22 March 1989, he was discharged accordingly.  

6.  The DD Form 214 issued to the applicant at the time of his discharge shows his date of birth was 3 August 1960.  He was 27 years of age when he committed the offenses for which he was convicted.

7.  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.

8.  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.

9.  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.

10.  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 evidence of record does not support the applicant's request for upgrade of his BCD.

2.  He was charged with distribution of cocaine, which warranted trial by court-martial.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  

3.  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)                                         AR20100017096



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ABCMR Record of Proceedings (cont)                                         AR20100017096



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