IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100020353 


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 (BCD).

2.  The applicant states, in a letter to the Veteran's Administration Board, during his time of service he had been considered a respectable and honorable Soldier by his fellow Soldiers as well as his higher authorities.  He was first recognized with a Letter of Commendation for his partaking in the retrieval of a stolen military vehicle and helping the Military Police with the pursuit of the Soldier.  During the last year of his 4-year enlistment, he was charged with being involved in a drug deal and sentenced to 24 months in military prison.  He was just simply with a group of fellow Soldiers who, unknown to him, were involved in that drug scandal.  When they were all caught, he happened to be with them; therefore, he was arrested and investigated.  He ended up only serving 6 months instead of the full 24 months.  He is mostly sorry for his friendship with the true criminals in that case.  He further requests the upgrade of his discharge to a more honorable discharge for career and personal purposes.

3.  He provides:

* a letter to Veteran's Administration Board
* a Letter of Commendation, dated 31 May 1984
* a DA Form 638 (Recommendation for Award), dated 4 September 1986
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his résumé

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 19 July 1983 for a period of
4 years in pay grade E-1.  He completed training and he was awarded military occupational specialty 63W (Wheel Vehicle Repairer).

3.  On 31 May 1984, he was issued a Letter of Commendation for his excellent assistance in his prompt response to the scene of a breakdown and his speedy and safe recovery of a very sensitive and expensive piece of equipment. 

4.  He served in Korea from 5 January 1984 through 6 January 1985.  He was advanced to pay grade E-4 on 22 November 1985.

5.  On 18 June 1986, he accepted punishment under Article 15, Uniform Code of Military Justice, for wrongfully using marijuana on 9 May 1986.

6.  A DA Form 638, dated 4 September 1986, shows he was recommended for award of a Letter of Commendation for his performance of duties in stopping and apprehending a suspect on 29 August 1986.

7.  On 29 December 1986, he was convicted by a general court-martial of one specification of wrongfully distributing 1.76 grams of cocaine on 22 April 1986 and one specification of wrongfully distributing 2.475 grams of cocaine on 15 April 1986.  He was sentenced to a BCD, confinement for 6 months, a forfeiture of $475.00 pay per month for 6 months, and a reduction to pay grade E-1.

8.  On 9 April 1987, the convening authority partially approved the sentence and ordered it duly executed.  The convening authority disapproved the portion of the forfeiture exceeding $426.00 pay per month for 6 months and approved the remaining portion of the sentence.
9.  On 28 May 1987, the U.S. Army Court of Military Review approved the findings of guilty and affirmed the sentence.

10.  On 22 September 1987, the convening authority at the U.S. Army Correctional Activity, Fort Riley, KS, ordered the BCD duly executed.

11.  Accordingly, he was discharged on 29 September 1987 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial.  He was credited with 3 years, 9 months, and 10 days of net active service this period.  He also had 151 days of time lost.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11 specified a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before the bad conduct discharge could be duly executed.

13.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

14.  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 court-martial 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 shows the applicant was punished under Article 15 for wrongfully using marijuana and convicted by a general court-martial for wrongfully distributing 1.76 grams and 2.475 grams of cocaine on two separate occasions.  He was subsequently discharged pursuant to the sentence of the court-martial and he was issued a BCD after his sentence was affirmed.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  A BCD is adjudged by a court-martial when it determines a Soldier should be separated for bad conduct.  It appears his offenses warranted this punishment.

3.  The documentation he provided and his service records were carefully considered.  However, he has provided insufficient evidence to show that his discharge is unjust.  There is no error or injustice apparent in his record.  He has not provided any sufficient evidence or argument to show his discharge should be upgraded to more honorable discharge.  He was properly discharged in accordance with pertinent regulations, with due process, with no violation of his rights.  

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible career enhancement or for personal reasons.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  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 therefore were appropriate.  As a result, clemency is not warranted in this case.

6.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100020353



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ABCMR Record of Proceedings (cont)                                         AR20100020353



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