IN THE CASE OF:	  

		BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20100030236 


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, in effect, an upgrade of his bad conduct discharge (BCD).

2.  He states he got off to a bad start in the military and started drinking and doing drugs.  He explains he was getting drunk and high while on leave and sold a piece of rock cocaine to a Criminal Investigation Command agent.  He maintains he was not a drug dealer and, therefore, he received a special court-martial.  He adds that he was a very good Soldier with some problems, but has figured things out and no longer drinks alcohol or does drugs.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his 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's record shows he enlisted in the Regular Army on 22 March 1988.

3.  On 28 February 1990, he was convicted by a special court-martial for the following offenses:

* being absent without leave (AWOL) from 19 October to 6 December 1989
* being disrespectful in language towards a noncommissioned officer (NCO)
* disobeying a lawful order from an NCO
* wrongfully possessing and distributing cocaine

4.  On 13 April 1990, the court sentenced him to reduction to the grade of E-1, a forfeiture of $482.00 per month for 4 months, confinement for 4 months, and a BCD.  The convening authority approved the sentence and the U.S. Army Court of Military Review affirmed the findings and sentence on 9 October 1990.  The convening authority ordered the BCD executed on 9 May 1991.

5.  On 4 June 1991, he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), by reason of conviction by a court-martial.  He completed 2 years, 9 months, and 25 days of total active service with lost time from 19 October to 5 December 1989 and 6 December 1989 to 8 March 1990.  His DD Form 214 shows his character of service as "bad conduct."

6.  On 6 November 1995, he appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 15 September 1997, the ADRB denied his request for a discharge upgrade stating the board determined he was properly and equitably discharged.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 establishes policy and procedures for separating members with a dishonorable or BCD and 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 must be ordered duly executed.

8.  Army Regulation 635-200, paragraph 3-7a, provides 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

9.  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.

10.  Court-martial convictions stand as adjudged or as 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 was convicted by a special court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a BCD pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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 his undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  Additionally, the fact that he no longer drinks alcohol or does drugs is commendable.  However, good post-service conduct alone is not a basis for upgrading his discharge.

6.  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 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)                                         AR20100030236



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ABCMR Record of Proceedings (cont)                                         AR20100030236



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