IN THE CASE OF:	  

		BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20100026697 


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 an under other than honorable conditions discharge.

2.  He states he admits he made a mistake and requests reconsideration.  He believes he has paid his debt to the U.S. Army for his mistake.  Since his discharge in 1992, he has remained a model citizen.

3.  He provides a self-authored statement.

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 23 August 1989.  He was trained in and awarded military occupational specialty 52D (Power Generation Equipment Repairer).

3.  On 19 December 1991, his brigade commander imposed nonjudicial punishment (NJP) against him under Article 15, Uniform Code of Military Justice (UCMJ), for violating a lawful regulation by allowing another Soldier to drive drunk.  He appealed the punishment to the next higher authority, which was denied.

4.  General Court-Martial Order Number 94, issued by Headquarters, 3d Infantry Division, dated 15 October 1992, shows he pled guilty and he was found guilty of four specifications of violating Article 112a, UCMJ, for wrongfully using marijuana between 1 and 31 August 1991, 15 and 31 January 1992, and on 14 February 1992.  He was also found guilty of wrongfully distributing .9 grams of marijuana between 10 and 20 January 1992.  On 10 July 1992, he was sentenced to confinement for 18 months and to be discharged with a BCD.  The convening authority approved so much of the sentence as provided for 6 months of confinement and a BCD.  The U.S. Army Court of Military Review affirmed the findings and sentence on 17 December 1992.

5.  General Court-Martial Order Number 91, issued by Headquarters, U.S. Army Armor Center and Fort Knox, dated 7 July 1993, shows the sentence was affirmed and the BCD was ordered to be executed.  On 5 August 1993, he was discharged accordingly.

6.  His record shows no acts of valor, significant achievement, or service warranting special recognition.  

7.  In his self-authored statement, he summarizes his service and provides his account of the events leading to his discharge.  He states, in effect, that while performing the extra duty resulting from his NJP, he succumbed to pressure from another Soldier to locate a supply of hashish.  He later received 5 months of prison time for selling a half-gram of hashish.  He knows he made a huge mistake and paid his debt to the Army.  He now wishes to have an opportunity to qualify for benefits from the Department of Veterans Affairs.

8.  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 punitive discharge (dishonorable or bad conduct) pursuant only to an approved sentence of a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.


9.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued under certain circumstances for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial.

10.  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 evidence of record does not support the applicant's request for upgrade of his BCD.

2.  His distribution and repeated use of marijuana warranted trial by court-martial.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits.  

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.

5.  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)                                         AR20100026697



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ABCMR Record of Proceedings (cont)                                         AR20100026697



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