IN THE CASE OF:	  

		BOARD DATE:	  28 July 2011

		DOCKET NUMBER:  AR20100028515 


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 correction of his records to show he retired from the Army instead of showing he received a bad conduct discharge (BCD).

2.  The applicant states he became addicted to drugs but never received or was offered any medical or any other type of help from the military.

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the following periods:

* 21 October 1976 through 18 October 1993
* 26 October 1976 through 6 July 1978
* 22 June 1972 through 19 July 1976

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.  With prior enlisted service in the Regular Army (RA), the applicant reenlisted in the RA on 26 October 1976.  He remained on active duty through continuous reenlistments and extensions.  

3.  The applicant received nonjudicial punishment (NJP) on 1 August 1980, for being absent without leave (AWOL) from 10 July until 14 July 1980.

4.  On 12 January 1990, the applicant was declared a non-graduate from the Advance Noncommissioned Officers Course (ANOC) for failure to successfully complete the Army Physical Fitness Test after two attempts.

5.  The applicant was barred from reenlistment on 19 April 1990, for failure to pay his debts and failure to pass ANOC.

6.  On 9 January 1992, the applicant received NJP for wrongfully using cocaine.

7.  On 3 April 1992, the applicant was convicted, pursuant to his plea, by a general court-martial, of wrongful use of cocaine.  He was sentenced to a BCD and reduction to pay grade E-1.

8.  On 12 May 1992, the convening authority approved the sentence as adjudged and except that portion of the sentence pertaining to a BCD, ordered the sentence executed.

9.  General Court-Martial Order Number 53, issued by Headquarters, 7th Infantry Division (Light), Fort Ord, CA, dated 20 July 1993, noting that the sentence had been finally affirmed, ordered the BCD executed.  

10.  On 18 October 1993, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of duly reviewed and affirmed general court-martial conviction.  He received a BCD and had completed over 20 years of creditable active service.

11.  Army Regulation 635-200 (Personnel Separations) 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.  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, there is no evidence in the available record showing he was addicted to drugs at the time of his discharge from the Army.

2.  There is no pattern or history of drug addiction shown in his official records.  There is also no evidence that the applicant ever complained of being addicted to drugs while he was in the Army and failed to be treated.  Even if the applicant had been addicted to illegal drugs it would not have been a valid defense to his court-martial charges.  Likewise, such an addiction would not have qualified him for a medical retirement.

3.  His records show he was discharged as a result of a duly approved and affirmed general court-martial conviction of wrongful use of cocaine.  There is no basis for amending his records to show he retired from the Army as appose to showing he was discharged and received a BCD.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100028515



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ABCMR Record of Proceedings (cont)                                         AR20100028515



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