IN THE CASE OF:	  

		BOARD DATE:  18 January 2012

		DOCKET NUMBER:  AR20110014501 


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 (BCD) to a general discharge under honorable conditions.

2.  He states:

* he never had very good counsel or was told how a BCD could have an effect on his life
* in effect, the misconduct leading to his BCD is the only bad thing he has done wrong
* he has paid a heavy price for his dumb choice and he has learned from it
* he was a good service member until his wife started "fooling" around on him, then he took the wrong path

3.  He provides no additional evidence.

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 enlisted in the Regular Army on 31 July 1984.

3.  His service record shows he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on five separate occasions for the following offenses:

* being absent without leave (AWOL) from 2 to 7 May 1985
* being AWOL from 18 to 28 August 1985
* failing to go at the time prescribed to his appointed place of duty
* making a false official statement
* wrongfully using some amount of marijuana

4.  On 18 February 1988, he was convicted pursuant to his guilty pleas by a general court-martial of wrongfully distributing marijuana on two occasions and wrongfully using marijuana.  He was sentenced to be discharged from the service with a BCD, confinement for 8 months, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.

5.  On 14 March 1988, the court-martial convening authority approved the sentence except for that portion extending to a BCD.

6.  On 26 April 1988, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  On 20 October 1988, the BCD was ordered to be executed.

8.  He was discharged on 2 November 1988 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, section IV, as a result of court-martial.  He completed 3 years, 8 months, and 3 days of creditable active service with 209 days of lost time.

9.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

		(1)  Paragraph 3-11 states 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 ordered duly executed.

		(2)  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.

	b.  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 trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  His service record is void of evidence and he has not provided any evidence which supports his contentions that he never had very good counsel or was told how a BCD could affect his life.

3.  His contention, in effect, that the misconduct leading to his BCD is the only bad thing he has done wrong, but that he has learned from it is acknowledged.  However, his service record shows he received five Article 15's for various offenses.

4.  His contention that he was a good service member until his wife started "fooling" around is also acknowledged.  However, his personal family problems are not sufficiently mitigating to warrant relief in this case.

5.  Based on the seriousness of the misconduct for which he was convicted, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant has not provided other evidence of post-service conduct or achievement that would support relief as a matter of equity.  Therefore, there is no basis for granting his 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)                                         AR20110014501



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ABCMR Record of Proceedings (cont)                                         AR20110014501



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