IN THE CASE OF:	  

		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110007982 


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 his bad conduct discharge be upgraded.

2.  The applicant states the ruling was unfair because he was set up by the Fort Knox Criminal Investigation Command (CID) and a certain sergeant/E-5 who testified against him.  He states he committed no wrong.  He states he was set up by CID to cover up the captain and a sergeant and to distract members of the platoon and company from within Golf Troop.

3.  The applicant provides no additional evidence in support of his application.

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.  His military records show he enlisted in the Regular Army on 27 January 1999.  He completed training and he was awarded the military occupational specialty of M1 armor crewman.  The highest rank/grade he held was 
private/E-2.

3.  Special Court-Martial Order Number 6, dated 16 March 2000, shows he pled guilty and was found guilty of:

* wrongfully using marijuana
* wrongfully distributing some quantity of marijuana
* wrongfully possessing some amount of an anabolic steroid, methandrostenolone, a Schedule III controlled substance
* wrongfully using the anabolic steroid, methandrostenolone, a Schedule III controlled substance on divers occasions

4.  The convening authority approved the adjudged sentence of a bad conduct discharge, confinement for 45 days, and forfeiture of $670.00 pay per month for 3 months.

5.  The U.S. Army Court of Criminal Appeals affirmed only so much of the finding of guilty of specification 5 of charge I in that the applicant wrongfully used the anabolic steroid, methandrostenolone, a Schedule III controlled substance, on one occasion.  The court affirmed the other three findings of guilty as charged.

6.  Special Court-Martial Order Number 10, dated 9 February 2001, shows the sentence as modified by the U.S. Army Court of Criminal Appeals was affirmed and that portion of the sentence pertaining to confinement had been served.  It shows the appellate review was completed and the bad conduct discharge was ordered executed.

7.  Accordingly, the applicant was discharged as a result of a court-martial on 11 May 2001 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV.  He was given a bad conduct discharge.  The DD Form 214 he was issued shows he completed 2 years, 2 months, and 10 days of active service during this period.  Item 29 (Dates of Time Lost During This Period) contains the entry, "Under 10 USC 972:  20000107-20000210."

8.  Army Regulation 635-200, paragraph 3-11, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

9.  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.

10.  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.

11.  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.  While the applicant contends that he was set up by CID, that the ruling was unfair, and that he committed no wrong, he provided no evidence to support these contentions.  Further, he pled guilty to several of the charged offenses which required that he essentially explain and acknowledge his crimes before the military judge while under oath.

2.  He was issued a bad conduct discharge pursuant to the approved sentence of a special court-martial for:

* wrongfully using and distributing marijuana
* wrongfully possessing and using an anabolic steroid, methandrostenolone, a Schedule III controlled substance

3.  The appellate review was completed and the affirmed sentence ordered executed.  His conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time and the discharge appropriately characterizes the misconduct for which he was convicted.

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 were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable or a general 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 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)                                         AR20110007982



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110007982



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1