IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100025339 


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) to a general discharge (GD).

2.  The applicant states he served his complete time for the offense and paid for his mistake.  He never received his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

3.  The applicant provides no supporting documentation.

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 requested, in effect, a copy of his DD Form 214 that he never received.  His record contains a DD Form 214 for the period 21 November 1985 through 1 August 1988.  This DD Form 214 shows in Item 19 (Mailing Address After Separation) the entry "2xx Pearl Street, Jacksonville, AR 77076," which is the address his DD Form 214 would have been mailed to at the time.  However, a copy of his DD Form 214 will be enclosed with this Record of Proceedings.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant enlisted in the Regular Army on 21 November 1985.  He completed training and he was awarded military occupational specialty 76Y (Unit Supply Specialist).

4.  While serving in Germany, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, in September 1987 for a positive urinalysis for marijuana.

5.  On 8 December 1987, in accordance with his pleas, a special court-martial found the applicant guilty of one specification of distributing a controlled substance, marijuana in the hashish form.  The adjudged sentence was reduction to pay grade E-1, forfeiture of $420.00 pay per month for 6 months, confinement for 45 days, and a BCD.

6.  On 5 January 1988, the court-martial convening authority approved the findings and sentence.

7.  On 18 January 1988, the court-martial convening authority directed that the applicant be placed on excess leave pending completion of his appellate review.

8.  The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence as approved by the convening authority on 8 March 1988.

9.  Special Court-Martial Order Number 123, issued by Headquarters, Army Armor Center, Fort Knox, KY, dated 28 June 1988, directed that as the confinement portion of the sentence had been served, the findings and sentence had been affirmed, and Article 71(c), Uniform Code of Military Justice having been complied with, the BCD be duly executed. 

10.  On 1 August 1988, the applicant was discharged with a BCD in accordance with Army Regulation 635-200, chapter 3, section IV, as a result of court-martial. The applicant completed 2 years, 7 months, and 5 days of creditable active service with 36 days of time lost due to confinement and 5 months and 23 days of excess leave.
11.  The applicant's record is void of any indication of any personal awards or meritorious acts.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides that a GD is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as to warrant an honorable discharge.

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 Army Board for Correction of Military Records 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 states he served his complete time for the offense and paid for his mistake.  He further states he never received his DD Form 214.

2.  A copy of his DD Form 214 will be provided to him.

3.  The applicant ignores the fact that his sentence for illegal drug distribution not only included a short period of confinement, but also a forfeiture of pay, reduction in pay grade, and a BCD.

3.  The applicant has not provided any evidence or argument to outweigh the offenses that led to his court-martial.  The character of the discharge is commensurate with the applicant's offenses and overall record of military service.

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 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)                                         AR20100025339



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ABCMR Record of Proceedings (cont)                                         AR20100025339



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