IN THE CASE OF:	  

		BOARD DATE:  7 June 2012

		DOCKET NUMBER:  AR20110024539 


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, in effect, that his bad conduct discharge (BCD) be upgraded to a more favorable discharge. 

2.  The applicant states, in effect, that he was not tried fairly and the discharge he received was too harsh a punishment for his offense given the circumstances at the time.  He also states that his service in Southwest Asia (SWA) during Operation Desert Shield/Storm caused him to suffer from post-traumatic stress disorder (PTSD) and this was the reason for his misconduct.

3.  The applicant provides a two-page letter explaining his application, four third-party character references, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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 10 November 1983 for a period of 3 years and training as a medical specialist.  He completed his basic training at Fort Jackson, South Carolina and advanced individual training at Fort Sam Houston Texas.  He remained on active duty through a series of continuous reenlistments and he was promoted to the pay grade of E-5 on 1 July 1990.

3.  His records show that he served 3 years in Korea and was transferred to Fort Campbell, Kentucky.  He deployed to SWA from 15 September 1990 – 4 April 1991 and he served in Korea a second time from 20 November 1991 – 
19 October 1993 (23 months) before being returned to Fort Campbell on 
3 December 1993.

4.  On 25 April 1994, he was convicted pursuant to his pleas by a special court-martial of three specifications of the wrongful use of cocaine during the period of 11 January to 24 March 1994.  He was sentenced to confinement for 100 days, reduction to the pay grade of E-1, and a BCD.

5.  On 24 August 1994, the U.S. Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

6.  On 3 May 1995, the applicant was discharged pursuant to a duly affirmed court-martial conviction.  He had served 11 years, 3 months, and 4 days of active service and had 81 days of lost time due to being in confinement.

7.  There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  A review of the applicant’s evaluation reports show that he received essentially maximum ratings throughout his tenure as a noncommissioned officer.

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

10.  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

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

2.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and should have been raised and adjudicated in the appellate process.

3.  His punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.  

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)                                         AR20110024539



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ABCMR Record of Proceedings (cont)                                         AR20110024539



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