IN THE CASE OF:	 

		BOARD DATE:	 7 April 2011

		DOCKET NUMBER:  AR20100023721 


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 that his bad conduct discharge (BCD) be upgraded to general under honorable conditions.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in 17 1/2 years of service with no other adverse action.

3.  The applicant provides:

* DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States)
* correspondence relating to involuntary excess leave
* General Court-Martial Order Number 29, Headquarters, U.S. Army Armor Center and Fort Knox, dated 13 January 1994
* Decision, U.S. Army Court of Military Review, dated 30 July 1993
* General Court-Martial Order Number 1, U.S. Army Aviation Center and Fort Rucker, dated 4 May 1993
* DA Form 2-1 (Personnel Qualification Record – Part II)
* Army Commendation Medal Certificate
* three Army Achievement Medal Certificates
* three training certificates
* orders directing discharge and immediate reenlistment
* DD Form 4 (Enlistment Contract – Armed Forces of the United States)


* DD Form 214 (Report of Separation from Active Duty) effective 23 August 1978
* DD Form 214 effective 25 February 1994

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 2 December 1974.  He completed training and was awarded military occupational specialty (MOS) 11D (Scout Loader).  He later reclassified into MOS 67N (Utility Helicopter Repairman).  He continued his career and was promoted to sergeant first class on 3 February 1990.

3.  On 29 January 1993, a general court-martial convicted the applicant of wrongful use of cocaine between on or about 14 August 1992 and on or about 14 September 1992 and seven specifications of dishonorably failing to maintain sufficient funds for payment of checks.  He was sentenced to a BCD, confinement for 10 months, forfeiture of $400.00 per month for 10 months, and reduction to pay grade E-1.  The convening authority approved the sentence.

4.  The U.S. Army Court of Military Review affirmed the findings and sentence on 30 July 1993.

5.  General Court-Martial Order Number 29, U.S. Army Armor Center and Fort Knox, dated 13 January 1994, announced that the applicant's sentence was affirmed and the BCD was to be executed.  That portion of the sentence pertaining to confinement had been served.

6.  On 25 February 1994, the applicant, who had been on appellate leave since 29 September 1993, was separated with a BCD.  He completed 18 years, 6 months, and 23 days of creditable active duty.

7.  The Manual for Courts-Martial Table of Maximum Punishments lists violation of Article 112a (wrongful use, possession, etc., of cocaine) as being punishable with up to a dishonorable discharge (DD), 5 years of confinement, and total forfeiture of all pay and allowances and violation of Article 134 (making and uttering worthless checks) as being punishable with up to a BCD, 6 months of confinement, and total forfeiture of all pay and allowances.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  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.

9.  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 contends his BCD was too harsh for one isolated incident.

2.  The applicant was found guilty of wrongful use of cocaine.  For this charge alone, he could have received a DD, 5 years of confinement, and total forfeiture of all pay and allowances.  In addition, he was found guilty of seven specifications of writing bad checks.  Considering his years of service and his position as a trusted noncommissioned officer, the sentence he received was not unduly harsh.

3.  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.

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 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)                                         AR20100015576



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100023721



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1