IN THE CASE OF:	  

		BOARD DATE:	    29 March 2012

		DOCKET NUMBER:  AR20110016154 


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 that his bad conduct discharge (BCD) be upgraded to a general discharge (GD).

2.  The applicant states he was told that 6 months after his parole, his BCD would be changed to a GD as long as he fulfilled his parole.

3.  The applicant provides VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim).

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 entered active duty in the Regular Army on 21 August 1985.  He completed training as a cannon crewmember.  He was promoted to pay grade E-2 on 21 February 1986 and was promoted to pay grade E-3 on 21 August 1986.

3.  General Court-Martial Order Number 23, issued by Headquarters, 3rd Infantry Division, dated 19 June 1987, shows that pursuant to his plea, on 22 May 1987, he was convicted of three specification of distributing marijuana in the hashish form.  He was sentenced to:

* reduction to pay grade E-1
* forfeiture of all pay and allowances
* confinement for 15 months
* a BCD

3.  The convening authority approved the sentenced as adjudged and except for that portion provided for the BCD ordered the sentence executed.

4.  On 10 August 1987, the U.S. Army Court of Military Review, held the findings of guilty and the sentence as approved by the convening authority were correct in law and fact, and affirmed the findings of guilty and the sentence.

5.  General Court-Martial Order Number 41, issued by the U.S. Army Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, dated 7 March 1988, ordered the BCD executed.

6.  On 25 March 1988, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a duly reviewed and affirmed general court-martial conviction.  He completed 1 year, 9 months, and 1 day of net active service this period and he had approximately 306 days of lost time due to confinement.  He was issued a BCD.

7.  The applicant submits VA Form 21-4138, dated 22 July 2011, in which he reiterates his request and contentions.

8.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.


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

	a.  Paragraph 3-11 provides 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 duly executed.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  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.

3.  An Acting Staff Judge Advocate also reviewed and recommended approval of the action that was subsequently approved by the appropriate authority.  There is no evidence in the available record and the applicant has not submitted any evidence to show he was told his discharge would change within 6 months of his release from the Army.  In addition, the U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

4.  Based on his record of service, he did not serve under honorable conditions.  The BCD he received appropriately characterizes his service and is not overly severe considering the nature of his offense.

5.  In view of the foregoing, his request should be denied.


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)                                         AR20110016154





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ABCMR Record of Proceedings (cont)                                         AR20110016154



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