IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110004894 


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 that his bad conduct discharge be upgraded to honorable.

2.  The applicant states his discharge is inequitable because it was based on one isolated incident.  He served for 140 months in the service without any other adverse actions, including duty with honors in Operation Desert Shield/Storm.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and letters of support from his former instructor, pastor, and employer.

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.  On 7 November 1975, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  He was released from active duty on 
6 November 1978 and immediately transferred to the U.S. Army Reserve (USAR).

3.  On 30 January 1981, the applicant again enlisted in the Regular Army.  He served through a series of reenlistments and attained the rank of sergeant first class, pay grade E-7 on 1 April 1990.

4.  The applicant served in Kuwait from 31 May to 16 August 1991 in support of Operation Desert Shield/Storm.

5.  General Court-Martial Order (GCMO) Number 38, Headquarters, V Corps, dated 14 July 1992 shows that the applicant was arraigned, tried, and found guilty of violating:

	a.  Article 90, Uniform Code of Military Justice (UCMJ) (three specifications) for disobeying a lawful command of a superior commissioned officer; obstructing justice on divers occasions; and solicitation to obstruct justice on divers occasions;

	b.  Article 92, UCMJ (two specifications) for violation of a lawful general regulation; and

	c.  Article 112a, UCMJ (four specifications) for wrongful possession of hashish and marijuana cigarettes, wrongful use of marijuana, and possession of anabolic steroids.

6.  GCMO Number 38 indicates that on 13 May 1992, the applicant was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, confinement for 18 months, and reduction to pay grade E-1.

7.  GCMO Number 23, Headquarters, U.S. Army Garrison, Fort Dix, New Jersey, dated 10 August 1993, affirmed the sentence to a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 18 months, and reduction to pay grade E-1, adjudged on 13 May 1992, as promulgated in GCMO Number 38, Headquarters, V Corps, dated 14 July 1992.  Article 71(c) having been complied with, the sentence to a bad conduct discharge was to be executed.  That portion of the sentence pertaining to confinement had been served.

8.  The applicant's DD Form 214 shows that he was discharged from the Regular Army on 8 September 1993 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial.  He received a bad conduct characterization of service.

9.  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.

10.  The letters of support provided by the applicant state that his integrity during the period from 2006 to 2008, while a student, was of the highest standard.  His pastor says that the applicant, referred to as a deacon, has been a true blessing to the ministry and to all persons who have come in contact with him.  It is the pastor's hope that the applicant is able to fix his mistake from past years.  The applicant's employer and friend identifies the applicant as one of the finest men with whom he has ever worked.  The applicant's dedication to programs and services within the public housing communities promotes safety and encourages a positive and drug free way of living.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to honorable because it was based on one isolated incident.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations.

3.  The available evidence clearly indicates that the applicant's criminal behavior was not an isolated incident but, rather, occurred on divers occasions.

4.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

5.  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 seriousness of the applicant's criminal behavior, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

6.  In view of the above, 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)                                         AR20110004894





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ABCMR Record of Proceedings (cont)                                         AR20110004894



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