IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100025470 


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 an upgrade of his bad conduct discharge (BCD).

2.  The applicant states he:

* is 44 years old now
* made mistakes in the past, but his is not the same person he was when he was younger
* is God fearing and a man of integrity
* believes in second chances
* hopes the Board finds it within their hearts to upgrade his discharge

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 21 May 1985, at age 18.  He completed training as a combat engineer.

3.  On 25 November 1985, the applicant was counseled for the following violations:

* making false official statements
* being drunk on duty
* provoking speech and gestures
* assault consummated by battery
* disorderly conduct, drunkenness
* consuming alcohol under age
* initiating a false alert
* attempting to instigate fights with various people
* being involved in a fight with another Soldier

4.  On 19 December 1985, nonjudicial punishment (NJP) was imposed against the applicant for:

* causing a disturbance by uttering an official call alert
* using provoking speech and gestures to start a fight
* assaulting another Soldier by striking him with a closed fist

5.  On 6 January 1986, NJP was imposed against the applicant for:

* failing to go at the time prescribed to his appointed place of duty
* failing to obey a lawful order
* behaving with disrespect towards his superior noncommissioned officer

6.  As a result of his records of NJP and counseling, he received a locally imposed bar to reenlistment on 13 February 1986.

7.  On 10 February 1987, the applicant was convicted by a general court-martial, pursuant to his pleas, of two specification of distributing cocaine.  He was sentenced to:

* a BCD
* 
confinement at hard labor for 9 months
* forfeiture of all pay and allowances
* a reduction to pay grade E-1

8.  On 30 March 1987, the convening authority approved only so much of the sentence as provided for:

* a BCD
* confinement at hard labor for 9 months
* forfeiture of $426.00 per month for 13 months

9.  Except for that portion pertaining to his BCD, the convening authority ordered the sentence executed.

10.  On 2 July 1987, the U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact, and affirmed the findings of guilty.

11.  General Court-Martial Order Number 25, issued by the United States Army Correctional Activity, Fort Riley, KS, dated 25 January 1988, ordered the BCD executed.

12.  On 3 February 1988, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 3, as a result of court-martial, with issuance of a BCD.  He completed 2 years and 26 days of creditable active service.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will 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 affirmed sentence duly executed.

14.  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 Soldier's separation specifically allows such characterization.

15.  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 have been noted.  However, his youth and/or immaturity are not a basis for upgrading the type of discharge he received.

2.  His record shows he was discharged with a BCD as a result of a duly reviewed and affirmed general court-martial conviction and he has provided no evidence to show the type of discharge he received was erroneous or unjust.

3.  Based on his overall record of service, he did not serve honorably.  The BCD he received appropriately characterizes his service and is not overly severe considering the nature of his offenses.

4.  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.  Given the applicant's undistinguished record of service and 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.

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)                                         AR20100025470



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ABCMR Record of Proceedings (cont)                                         AR20100025470



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