IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100027315 


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.

2.  The applicant states:

* he was told that after 1 year his discharge would be changed to a general discharge
* his discharge was unjust because he did not have an opportunity to better himself
* he was doing someone a favor and simply showed up where weed was being sold and the individuals turned out to be agents of the U.S. Army Criminal Investigation Command
* his urinalysis tested positive but he never participated in any drug activity
* his attorney told him to plead guilty, because he would lose at the trial
* he completed his sentence and he was offered a chance to reenter the military under harsh conditions
* he was young and naïve at the time
* he is now going through some disabilities and can use the benefits

3.  The applicant did not provide any evidence.

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's records show he was born on 24 May 1967.  After having had prior service, he enlisted in the Regular Army at age 19 on 28 October 1986.  He held military occupational specialty 63B (Light Wheel Vehicle Mechanic).  

3.  On 8 December 1986, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) from 12 to 14 November 1986.  

4.  On 17 March 1987, his immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his misconduct.  The bar was ultimately approved by the approval authority.

5.  His records show he was reported AWOL on 3 March 1987, from 27 to 29 March 1987, and he was confined on 30 March 1987. 

6.  On 30 June 1987, at Fort Stewart, GA, he pled guilty at and was convicted by a general court-martial of:

* two specifications of failing to go at the time prescribed to his appointed place of duty
* two specifications of unauthorized absence
* one specification of distributing 12.80 grams of marijuana
* one specification of attempting to wrongfully distribute marijuana
* one specification of failing to obey a lawful order to remain on post
* one specification of escaping from confinement
* one specification of wrongfully using marijuana
* one specification of wrongfully using cocaine

7.  The court sentenced him to a forfeiture of all pay and allowances, confinement for 17 months, and a bad conduct discharge. 



8.  On 17 September 1987, the convening authority approved the sentence and except for that part of the bad conduct discharge the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

9.  On 5 November 1987, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 341, dated 9 June 1988, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

11.  He was accordingly discharged from the Army on 5 July 1988.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) as a result of court-martial.  This form further shows his character of service as bad conduct.  He completed a total of 1 year of creditable military service and he had 409 days of time lost.

12.  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.

13.  Paragraph 3-7a of Army Regulation 635-200 states that an honorable discharge 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.

14.  Paragraph 3-7b of Army Regulation 635-200 states 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows his trial by a general 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 characterized the misconduct for which the applicant was convicted.

2.  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.

3.  With respect to his arguments:

* contrary to his argument, the evidence of record shows he pled guilty and was convicted for various charges/specifications that included his wrongful use of marijuana and cocaine
* the Army has never had a policy wherein a character of service is upgraded due to passage of time
* contrary to his argument that he was not given a chance to better himself, his prior NJP and bar to reenlistment essentially put him on notice that his performance and/or conduct were not acceptable
* he was 19 years of age when he enlisted and 20 years of age when he was convicted by a court-martial; there is no evidence he was any less mature than other Soldiers who successfully completed their service obligations

4.  Based on his record of serious misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgraded discharge.









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)                                         AR20100027315



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ABCMR Record of Proceedings (cont)                                         AR20100027315



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