IN THE CASE OF:
BOARD DATE: 26 January 2012
DOCKET NUMBER: AR20110014871
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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he received a bad conduct discharge vice a dishonorable discharge.
2. The applicant states his character of service is incorrect on his DD Form 214. On 10 August 2006, the Army Clemency and Parole Board approved his request for parole and upgraded his dishonorable discharge to a bad conduct discharge. He recently applied for benefits with the Department of Veterans Affairs and realized his DD Form 214 was incorrect.
3. The applicant provides his DD Form 214 and a memorandum from the Army Review Boards Agency, dated 7 September 2006.
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 records show he enlisted in the Regular Army on 21 February 2002 and he held military occupational specialty 92F (Petroleum Supply Specialist). He was assigned to the 421st Medical Evacuation Battalion, 1st Armored Division, Wiesbaden, Germany.
3. Headquarters, 1st Armored Division, Wiesbaden, Germany, General Court-Martial Order Number 14, dated 2 June 2006, shows he was convicted by a general court-martial of the following specifications:
* wrongfully using cocaine on divers occasions between 1 April 2004 and 15 April 2005
* wrongfully using marijuana on divers occasions between 1 April 2004 and 15 April 2005
* wrongfully possessing marijuana on or about 13 February 2005
* wrongfully distributing Ecstasy on divers occasions between 1 April 2004 and 15 April 2005
4. He was sentenced to confinement for 30 months, forfeiture of all pay and allowances, and to be discharged with a dishonorable discharge. His sentence was adjudged on 8 August 2005. The convening authority approved only so much of the sentence as provided for 25 months of confinement, waiver of 6 months of pay to be paid to the applicant's spouse, and, except for the dishonorable discharge, he ordered the sentence executed.
5. On 10 April 2006, the Army Clemency and Parole Board approved his request for parole effective 13 October 2006 and voted to upgrade his dishonorable discharge to a bad conduct discharge.
6. Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 359, dated 20 December 2007, shows the finding and sentence were affirmed and the dishonorable discharge was ordered to be executed.
7. On 13 March 2008, he was discharged from the Army. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial with a dishonorable characterization of service. He completed 4 years and 22 days of creditable military service with 432 days of lost time due to confinement.
8. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Army Clemency and Parole Board is not empowered to set aside a conviction but is empowered to change the severity of the sentence imposed in the court-martial process 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:
The evidence of record shows the Army Clemency and Parole Board upgraded the applicant's dishonorable discharge to a bad conduct discharge on 10 August 2006. It appears that Headquarters, U.S. Army Field Artillery Center and Fort Sill, General Court-Martial Order Number 359, dated 20 December 2007, erroneously ordered his dishonorable discharge to be executed. As a result, when his DD Form 214 was issued it reflected his character of service as dishonorable. Therefore, he is entitled to the requested relief.
BOARD VOTE:
___X____ ___X ___ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by
issuing him a new DD Form 214 to show he was discharged with a bad conduct discharge.
_______ _ 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) AR20110014871
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ABCMR Record of Proceedings (cont) AR20110014871
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