IN THE CASE OF:
BOARD DATE: 13 December 2011
DOCKET NUMBER: AR20110011791
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 upgrade of his bad conduct discharge to a general discharge.
2. The applicant states:
* time has lapsed
* it has been 23 years since the error occurred
3. The applicant provides:
* Letter, dated 21 April 2010, from the Department of Veterans Affairs (DVA)
* Letter, dated 30 March 2010, from the Veterans of Foreign Wars
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 28 December 1984 for a period of 3 years. He completed his training and he was awarded military occupational specialty 11M (fighting vehicle infantryman).
3. On 12 April 1989, he was convicted by a general court-martial of exporting 2,986 grams of cocaine from the United States. He was sentenced to be reduced to E-1, to forfeit all pay and allowances, to be confined for 1 year, and to be discharged from the service with a bad conduct discharge. On 28 June 1989, the convening authority approved the sentence.
4. The decision of the U.S. Army Court of Military Review is not available. However, on 6 June 1990, the convening authority ordered the bad conduct discharge to be executed, indicating the sentence was affirmed.
5. On 22 June 1990, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial with a bad conduct discharge. He had served 4 years, 5 months, and 23 days of creditable active service with 364 days of time lost.
6. He provided documentation which indicates he has filed a claim for DVA benefits.
7. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
8. 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.
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.
DISCUSSION AND CONCLUSIONS:
1. He contends his discharge should be upgraded because time has lapsed. However, the passage of time is normally not a basis for upgrading a discharge.
2. His record of service included one general court-martial conviction for exporting almost 3000 grams of cocaine and 364 days of time lost. As a result, his record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.
3. Trial by court-martial was warranted by the gravity of the offenses charged. The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant 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 therefore were appropriate. As a result, clemency is not warranted in this case.
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) AR20110011791
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ABCMR Record of Proceedings (cont) AR20110011791
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