IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100025306


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, his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD) or a general discharge (GD).

2.  The applicant states the Army Board for Correction of Military Records (ABCMR) cannot presume administrative regularity in his case because:

* it is an injustice for him to continue to suffer the adverse consequences of a BCD
* he committed only minor, isolated offenses
* based on "current standards" he would not have received a BCD for his offenses
* he had prior honorable service
* drug abuse impaired his ability to serve and he "may or may not" have been afforded treatment options

3.  The applicant provides:

* a statement and a letter
* a 12 November 2009 National Personnel Records Center letter
* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two DD Forms 4/1-4 (Enlistment/Reenlistment Document)
* his Personnel Qualification Record, Parts I and II
* Optional Form 275 (Medical Record Report)


* Special Court-Martial Order Number 11, Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, GA, dated 27 September 1990
* Special Court-Martial Order Number 17, Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, GA, dated 6 December 1991

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 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 served in the Regular Army from 15 November 1985 through 31 January 1992.  His military service ended following his conviction by a special court-martial which directed that he be given a BCD.

3.  Medical records contained in the applicant's Military Personnel Records Jacket (MPRJ) show he had a 3-month history of cocaine use.  He self-referred to the Fort Gordon Community Counseling Center on 16 April 1990 and was further referred to the Dwight David Eisenhower Army Medical Center (DDEAMC).  He was released from the DDEAMC on 19 April 1990 and referred for intensive outpatient care (Track II) in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  He was readmitted to DDEAMC from 
24-30 April 1990 for inpatient detoxification and further assessment.

4.  Special Court-Martial Order Number 11, Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, Georgia, dated 27 September 1990 shows the following charges, pleas, and findings:

   a.  Charge I.  Article 86.  Plea:  Not Guilty.  Finding:  Guilty

* Specification 1:  Failure to go at the prescribed time to his designated place of duty at 0545 hours, 11 May 1990.  Plea:  Not Guilty.  Finding:  Guilty
* Specification 2:  Failure to go at the prescribed time to his designated place of duty at 0745 hours, 29 May 1990.  Plea:  Not Guilty.  Finding:  Not Guilty
* Specification 3:  Failure to go at the prescribed time to his designated place of duty at 0845 hours, 4 June 1990.  Plea:  Not Guilty.  Finding:  Not Guilty
* Specification 4:  Unauthorized absence from unit from 5-8 June 1990 Plea:  Not Guilty.  Finding:  Guilty

   b.  Charge II.  Article 128.  Plea:  Not Guilty.  Finding:  Guilty

* Specification 1:  Assault consummated by battery on 8 June 1990 Plea:  Not Guilty.  Finding:  Guilty
* Specification 2:  Assault consummated by battery on 8 June 1990 Plea:  Not Guilty.  Finding:  Not Guilty

   c.  Charge III.  Article 91.  Plea:  Not Guilty.  Finding:  Guilty

* Specification:  Willfully disobeying a lawful order of a noncommissioned officer on 8 June 1990.  Plea:  Not Guilty.  Finding:  Guilty except for the words "let his wife leave the room" 

   d.  Charge IV.  Article 80.  Plea:  Not Guilty.  Finding:  Guilty
   
* Specification:  Being disrespectful in language and deportment towards a commissioned officer on 8 June 1990.  Plea:  Not Guilty  Finding:  Guilty, except for the words "son of a bitch"  

   e.  Charge V.  Article 134.  Plea:  Not Guilty.  Finding:  Guilty

* Specification:  Communicating a threat on 9 June 1990.  Plea:  Not Guilty.  Finding:  Guilty

5.  The sentence was adjudged on 29 August 1990 and consisted of a BCD, confinement for 5 months, a forfeiture of $450.00 pay for 5 months, and reduction to the lowest enlisted grade.  The convening authority approved the sentence on 27 September 1990.  He served his confinement from 11 June through 
15 October 1990.  He was released from confinement and sent home on excess leave without pay on 17 October 1990 to await appellate action on his court-martial conviction.

6.  The U.S. Army Court of Military Review set aside the finding of guilty for communicating a threat.  The court affirmed the remaining finding of guilty and affirmed the approved sentence.  The U.S. Court of Military Appeals denied the applicant's petition for review on 31 January 1992.  Special Court-Martial Order Number 17, Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, GA, dated 6 December 1991, affirmed the applicant's sentence and ordered his BCD executed.  He was discharged on 31 January 1992.

7.  The applicant's DD Form 214 shows in:

* Item 23 (Type of Separation) "DISCHARGE"
* Item 24 (Character of Service) "BAD CONDUCT"
* Item 25 (Separation Authority) "AR 635-200, CHAPTER 3, SEC IV"
* Item 26 (Separation Code) "JJD"
* Item 27 (Reentry Code) "3"
* Item 28 (Narrative Reason for Separation) "AS A RESULT OF COURT-MARTIAL, OTHER"

8.  Army Regulation (AR) 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparing and distributing DD Form 214.  It provides:

   a.  For enlisted personnel, enter in Item 23 one of the following:
   
* Relief from active duty
* Discharge
* Retirement
* Separation and order to additional active duty
* Relief from ADT [Active Duty for Training]
* Release from custody and control of the Army
* Relief from ADT and discharge from the Reserve of the Army

   b.  For Item 24, enter one of the following authorized entries:

* Honorable
* Under Honorable Conditions (General)
* Under Other Than Honorable Conditions
* Bad Conduct
* Dishonorable
* To be determined
* Not applicable



   c.  For Item 25, enter the regulatory or statutory authority cited in directives authorizing separation action.

   d.  For Item 26, enter the proper separation program designator (SPD) from AR 653-5-1, representing the reason for separation.

   e.  For Item 27, enter the appropriate reentry (RE) code based on the SPD code in Item 26.

9.  AR 635-5-1 (SPD Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  They are intended exclusively for the internal use by the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  The SPD code of "JJD" is the correct code for Soldiers separating under the provisions of AR 635-200 by reason of a court-martial conviction.

10.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This table shows the SPD codes and corresponding RE codes.  The SPD code of "JJD" has a corresponding RE code of 3 or 4; however, the table mandates that an RE Code of "4" be assigned when the discharge is for "BAD CONDUCT."

11.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, of the regulation then in effect, provided that a Soldier would be given a BCD pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must have been completed and the affirmed sentence ordered duly executed.

12.  AR 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an HD 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.



	b.  Paragraph 3-7b states that a GD 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

13.  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 discharge due to matters which should have been raised in the appellate process, 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 service records show he abused illegal drugs during a 
3-month period from January – March 1990.  However, the record also shows he self-referred to DDEAMC for detoxification and was treated on an inpatient basis from 24-30 April 1990, followed by outpatient care.

2.  The applicant's acts of misconduct for which he was tried by a special court-martial occurred during May and June of 1990, after his cocaine detoxification.  Drug use and or possession were not among the charges against him.  He was charged with failure to go to his place of duty, communicating a threat, assault, and being disrespectful.  These were not "minor, isolated offenses" as the applicant alleged; they were serious offenses.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  His DD Form 214 is correct except for his 
RE code.  Per Army regulation, his RE code should have been "4" and not the "3" he received.  

4.  The applicant was treated for drug abuse with both inpatient detoxification and enrollment in the ADAPCP Track II program.  Despite the Army's best efforts, he resorted to increasingly serious acts of misconduct which necessitated his trial by court-martial and ultimate discharge.


5.  The applicant's prior service was considered; that service was not so meritorious as to warrant a GD or an HD.  Given the applicant's offenses under today's standards he would have been issued a BCD.  He has established no basis for clemency.

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)                                         AR20100025306



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100025306



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1