IN THE CASE OF:	  

		BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20100026993 


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:

* his punishment was too harsh
* he was young and he was not thinking of the consequences at the time
* he served his country with honor and respect and a second chance should be warranted
* he never tested positive on any urinalysis and never used drugs while he was in the Army
* he has made a lot of positive changes in his life and he is currently attending "the university"
* the people that told on him were racist

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* The second page of General Court-Martial (GCM) Order Number 20
* Two pages of a DA Form 2-1 (Personnel Qualification Record)
* Enlistment/Reenlistment Document
* GCM Order Number 182
* Self-authored, undated letter



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 29 January 1991, at age 20.  He completed training as an M1 armor crewman.

3.  On 2 August 1993, the applicant was convicted, pursuant to his pleas, by a general court-martial of:

* using cocaine
* distributing cocaine
* manufacturing crack cocaine
* failure to repair (three specifications)

4.  He was sentenced to:

* a BCD
* confinement for 9 months
* a reduction in rank
* a forfeiture of all pay and allowances

5.  The convening authority approved only so much of the sentence as provided for:

* a BCD
* confinement at hard labor for 6 months
* reduction in rank
* a forfeiture of all pay and allowances

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

7.  On 4 January 1994, 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.

8.  General Court-Martial Order Number 182, issued by the United States Army Armor Center and Fort Knox, Fort Knox, KY, dated 29 June 1994, ordered the BCD executed.

9.  On 10 August 1994, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial, with the issuance of a BCD.  He completed 3 years, 2 months, and 3 days of net active service this period.

10.  In a self-authored letter, the applicant states, in effect:

* at the time of discharge, he was age 23, and he had a few discipline problems due to being young and on his own for the first time
* he received very harsh treatment from his chain of command
* the evidence used to convict him was not truthful, drug users were used to help convict him
* he only used drugs one time
* he was young and capable of change, but he was not offered a chance to save his young military career and his life
* he was a good Soldier and did not deserve the punishment he received
* he did not know how to ask for help and he was not treated well as a Soldier

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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.

12.  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.

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 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.  The evidence he submits has been considered.  However, his youth and/or immaturity are not sufficient as a basis for upgrading his discharge.

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 too harsh, erroneous, or unjust.  It is further noted that the applicant was found guilty based upon his guilty pleas and admission of guilt to the military judge.

3.  Based on his overall record of service, he did not serve honorably.  The BCD he received appropriately characterizes his service, it is not 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)                                         AR20100026993



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ABCMR Record of Proceedings (cont)                                         AR20100026993



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