IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110015959 


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).

2.  The applicant states there was no proof that he committed a crime.  He did not report those who committed the crime because he was in fear for his life.  He was young, immature, and scared when he was offered 3 years confinement in a correctional facility rather than a 50-year prison term.  He has had time to reflect on his past mistakes and is hopeful for an upgrade of his discharge.

3.  The applicant provides three letters 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.  The applicant enlisted in the Regular Army on 28 June 1988 for a period of
3 years.  At the time, he was 18 years of age.

3.  The applicant was awarded military occupational specialty 77F (Petroleum Supply Specialist).  He was assigned overseas to Germany on 3 January 1989.

4.  In April 1990, the applicant was convicted at a general court-martial of:

* wrongfully possessing approximately 61 grams of marijuana in the hashish form, with intent to distribute the said controlled substance
* wrongfully possessing approximately 18.53 grams of marijuana in the hashish form
* conspiring with an enlisted Soldier to commit burglary
* unlawfully breaking and entering the room of an enlisted Soldier with intent to commit larceny

5.  On 13 April 1990, he was sentenced to forfeit all pay and allowances, to be confined for 25 months, and to be discharged with a BCD.

6.  On 25 May 1990, the convening authority approved the sentence, except the part of the sentence extending to a BCD, and ordered it executed.

7.  U.S. Army Confinement Facility, Mannheim, Orders 14-12, dated 2 May 1990, reassigned the applicant to the U.S. Army Correctional Brigade, Fort Riley, KS for further confinement as a prisoner.

8.  On 12 October 1990, the United States Army Court of Military Review affirmed the findings and the sentence as approved by the convening authority.

9.  United States Army Correctional Brigade, Fort Riley, KS, General Court-Martial Order Number 127, dated 12 March 1991, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the sentence of a BCD was ordered duly executed.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 29 April 1991 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, as a result of court-martial.

   a.  He had completed 1 year, 9 months, and 11 days of active service.

   b.  Item 29 (Dates of Time Lost During This Period) shows:  under Title 10, U.S. Code, section 972, from 13 April 1990 through 28 April 1991.
11.  In support of his application, the applicant provides the following documents:

	a.  An undated letter from Mr. Audre' J. W----, Community Relations Unit, Lake City Police Department, Lake City, FL, who states that he has known the applicant for 15 years and attests to the applicant's community service in faith-based programs.

	b.  A letter, dated 1 June 2011, from the Reverend Wyndell W----, Fellowship Missionary Baptist Church, Lake City, FL, who states that he has known the applicant for 7 years and attests to his drive, determination, and wholesome character.

	c.  An undated letter from Mr. Jake H---- Jr., City Councilman, District 10, City Council, Lake City, FL, who states that he has known the applicant for 10 years and attests to the applicant's character and work-ethic.

12.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 contends that his BCD should be upgraded because he was young, immature, and scared at the time of his court-martial.

2.  The applicant's contentions were matters for consideration in his court-martial and the subsequent appeals process of the applicant's case.

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the applicant's appeal.

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.  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.

5.  The applicant's contentions regarding his post service achievements and conduct were considered.  However, good post service conduct alone is not a basis for upgrading a discharge.  

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110015959



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ABCMR Record of Proceedings (cont)                                         AR20110015959



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