IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20110021224 


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) to a general discharge (GD).

2.  The applicant states he made a big mistake when he was young.  He states he believes that his mistakes made him look at life differently and find the path he is on to make him the man he is now.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and, through his Representative Congress, an undated, self-authored statement.

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 17 August 1983, for 3 years, in the pay grade of E-1.  He completed training as a bridge crewman.  He was promoted to pay grade E-2 on 17 February 1983, and was promoted to pay grade E-3 on 17 August 1984.

3.  Special Court-Martial Order Number 64, issued by Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, dated 11 October 1984, shows that pursuant to his plea, on 6 November 1984 he was convicted of distribution of marijuana.  He was sentenced to:

* reduction to pay grade E-1
* forfeiture of $200.00 pay per month for 2 months
* confinement for 2 months
* a BCD

4.  The convening authority approved the sentence as adjudged and except for that portion providing for the BCD ordered the sentence executed.

5.  On 8 March 1985, 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.

6.  Special Court-Martial Order Number 5, issued by Headquarters, Fort Riley, Fort Riley, Kansas, dated 3 February 1986, ordered the BCD executed.

7.  On 13 February 1986, 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 special court-martial conviction.  He completed 2 years, 4 months, and 7 days of net active service this period and he received a BCD.

8.  A review of the available record does not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

9.  The applicant submits, through his Representative in Congress, an undated, self-authored statement contending:

* when he received his BCD 27 years ago, he resolved from then on to live the type of life his family would be proud of and respect
* his 19 year old daughter is attending college full time and working full time in a pediatrics unit
* 
he received full custody of his 10 year old son who is blossoming with his guidance
* he is recognized as responsible, intelligent, and hard working
* whenever he applies for a really decent position his military record stops him
* he has an opportunity for a good job with the State of Illinois if his discharge were to be upgraded

10.  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.

11.  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 GD 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 statement has been considered.

2.  By law, any redress by this Board of the finality of a court-martial conviction, after 1949 under the Uniform Code of Military Justice, is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The available evidence shows he was convicted, pursuant to his pleas, by a special court-martial of distribution of marijuana.

4.  The applicant's post-service conduct has been considered.  However, his military record documents no acts of valor or significant achievement warranting special recognition.  He did not serve in the Army under honorable conditions.  Youth and/or immaturity are not a basis for upgrading a discharge.  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, the applicant’s requests 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)                                         AR20110021224





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ABCMR Record of Proceedings (cont)                                         AR20110021224



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