IN THE CASE OF:	  

		BOARD DATE:	  21 February 2012

		DOCKET NUMBER:  AR20110016596 


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 an upgrade of his bad conduct discharge (BCD).

2.  The applicant states he served for over 17 years with no ill reports or infractions.  He attained the grade of sergeant first class (SFC)/E-7, served in Desert Storm, and successfully completed a tour of duty as a recruiter.  He feels he was given a BCD without any consideration for his 17 years of good service when he was just a little over two years from retirement.  He wants to make sure that he is given credit for his periods of honorable service.  He is aware of the incident and took full responsibility for his actions.  He will always be proud to have been part of the U.S. Armed Forces.

3.  The applicant 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's military records show he enlisted in the Regular Army and entered active duty on 13 June 1978.  He held military occupational specialty 11M (Fighting Vehicle Infantryman).  The highest rank/grade he attained while serving on active duty was SFC/E-7.

3.  His records show he served in a variety of stateside or overseas assignments.  His last assignment was with A Company, 1st Battalion, 8th Infantry Regiment, Fort Carson, CO, from 1 November 1992 to 10 October 1995.

4.  His records contain a DD Form 2624 (Specimen Custody Document - Drug Testing), dated 3 June 1994, which shows he tested positive for cocaine on a drug test. 

5.  On 13 September 1994, he was convicted, pursuant to his pleas, by a special court-martial of two specifications of making false official statements, three specifications of wrongfully using cocaine, and one specification of wrongfully endeavoring to impede an investigation.  The Court sentenced him to a BCD, confinement for 6 months, and reduction to private/E-1.  The convening authority approved his sentence on 22 December 1994.

6.  On 14 February 1995, the U.S. Army Court of Military Review Army affirmed the approved findings of guilty and the sentence.

7.  The U.S. Court of Appeals for the Armed Forces denied his request for review on 18 July 1995.  

8.  Special Court-Martial Order Number 36, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, on 11 August 1995, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed. 

9.  He was discharged from active duty in pay grade E-1 on 10 October 1995 as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, and issued a BCD.  He was credited with completing 16 years, 11 months, and 5 days of net active service with 142 days of lost time due to confinement.  His DD Form 214 shows in:

* Item 18 (Remarks): Immediate Reenlistments This Period--
13 June 1978 through 13 December 1981, 14 December 1981 through 20 October 1985, 21 October 1985 through 12 August 1991, and 13 August 1991 through 12 August 1997
* Item 18: Member has not completed his first full term of service

10.  On 28 April 1997, the Army Discharge Review Board (ADRB) considered his request to upgrade his discharge.  The ADRB determined he was properly and equitably discharged, and denied his request.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 states 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 sentence affirmed before it can be duly executed.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

14.  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.

15.  Army Regulation 635-5 (Separation Documents) states enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter “IMMEDIATE REENLISTMENTS THIS PERIOD” (specify dates) in item 18 of the DD Form 214.  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter “Continuous Honorable Active Service From” (first day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment). Soldiers who have complete their first 
enlistment are considered to have completed their first full term of service, and the entry "Member Has Completed His First Full Term of Service" is required in item 18 of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  Item 18 of the applicant's DD Form 214 does not list his continuous honorable active service.  Therefore, he is entitled to have item 18 of his DD Form 214 corrected to show he served honorable from 13 June 1978 through 12 August 1991.  

2.  Item 18 of the applicant's DD Form 214 states that he did not complete his first full term of service.  This entry is incorrect; therefore, he is entitled to have item 18 of his DD Form 214 corrected to show he completed his first full tem of service.

3.  The evidence of record shows he was convicted by a special court-martial of two specifications of making false official statements, three specifications of wrongfully using cocaine, and one specification of wrongfully endeavoring to impede an investigation.  He was discharged on 10 October 1995 pursuant to the approved sentence of a special court-martial.  His trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

4.  He provided no evidence to show his discharge is unjust or as a result of improper actions.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations with due process and with no violation of his rights.

5.  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 were appropriate.  As a result, clemency is not warranted in this case.  In view of the circumstances in this case, he is not entitled to an upgrade of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from item 18 of his DD Form 214:

* Member has not completed his first full term of service

	b.  adding to item 18 of his DD Form 214:

* Continuous Honorable Active Service from 13 June 1978 through 
12 August 1991
* Member has completed his first full term of service

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his 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)                                         AR20110016596





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ABCMR Record of Proceedings (cont)                                         AR20110016596



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