IN THE CASE OF:
BOARD DATE: 3 February 2011
DOCKET NUMBER: AR20100019003
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, an upgrade of his bad conduct discharge (BCD).
2. The applicant states:
* he went to his company commander for help
* he was court-martialed instead of being helped
* he wanted to stay in the Army
* he received a raw deal
3. The applicant does not provide any additional documents 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 applicants 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 applicants 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 record shows he enlisted in the Regular Army on
26 November 1985. He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Infantryman). The applicant's record shows the highest rank he attained during his tenure of service was private/pay grade E-3.
3. On 27 October 1987, the applicant was convicted by a special court-martial
(SPCM) for the following:
* one specification of being absent without leave (AWOL) from 27 August to 3 September 1987
* one specification of the wrongful use of marijuana
* two specifications of the wrongful use of cocaine
4. He was sentenced to:
* be reduced to pay grade E-1
* a forfeiture of $438.00 pay month for 3 months
* confinement for 3 months
* BCD
5. The sentence was affirmed and that portion of the sentence pertaining to confinement was served.
6. The applicant's military personnel records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged on
7 October 1988 with a BCD as a result of court-martial. He completed a total of
2 years, 7 months, and 22 days of military service with 83 days of lost time.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge (DD) or BCD. It stipulates, in pertinent part, that a Soldier will be given a DD or BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was 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 members 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 Soldiers 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 applicant's contentions were carefully considered. However, there is insufficient evidence to support granting the requested relief.
2. The evidence of record shows no error or injustice related to the applicants SPCM conviction and/or his subsequent BCD. By law, any redress of the finality of a court-martial conviction is prohibited. A discharge may be changed if clemency is determined to be appropriate to moderate the severity of the sentence imposed.
3. The applicant's overall record of service reveals no acts of valor, significant achievement, or service warranting special recognition.
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) AR20100019003
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ABCMR Record of Proceedings (cont) AR20100019003
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