IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20110025132 


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.

2.  The applicant requests that the Board view the numerous attachments which attest to his character, responsibility, and moral values.  In a statement, dated March 2006, the applicant indicated that he was age 19 and totally confused/unaware of the devastating effect of his decisions.  However, he points out his mistakes did not cause harm to any other person or property.  He further states that he has grown as a man through his experiences.  He seeks mercy from the Board and requests that he be given the opportunity to live as a contributing member of society.  

3.  The applicant provides historical documentation pertaining to his court-martial and subsequent BCD. 

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 19 April 2000.  He completed training and was awarded military occupational specialty 88M (Motor Transport Operator).  The highest rank/grade he attained while serving on active duty was private/E-2.  However, he held the rank/grade of private (PV1)/
E-1 at the time of separation.

3.  General Court-Martial (GCM) Order Number 5, published by the U.S. Army Military District of Washington, dated 11 April 2003, shows the applicant pled not guilty to Article 85, but guilty to Article 86, and he was found guilty of Article 86 a lesser included offense of the specification of absenting himself from his unit on or about 29 August 2001 and remaining absent in a desertion status until
28 January 2002.  In addition, the applicant pled not guilty but was found guilty of the specification of violating Article 112a of the Uniform Code for Military Justice by using a schedule 1 substance on or about 1 August 2001.  He also pled guilty and was found guilty of wrongfully using marijuana on or about 29 January 2002.  On 9 July 2002, the following sentence was adjudged:

* Reduction to PV1/E-1
* A forfeiture of all pay and allowances
* Confinement for 11 months
* A BCD

4.  On 24 January 2006, the U.S. Army Court of Military Review upheld the findings of guilty, found the sentence correct in law and fact, and affirmed the findings of guilty and the sentence.

5.  GCM Order Number 117, issued by Headquarters, U.S. Army Armor Center and Fort Knox, dated 14 July 2006, shows the appropriate authority suspended the confinement in excess of 6 months in the initial action (dated 11 April 2003) with provisions for automatic remission.  A forfeiture of all pay and allowances, reduction to the rank of PV1, and a BCD was ordered to be duly executed.  

6.  On 31 January 2007, the applicant was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), by reason of court-martial with a BCD.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was 


issued shows he completed a total of 5 years, 11 months, and 20 days of creditable active military service and he had accrued 298 days of lost time.

7.  Army Regulation 635-200:

	a.  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.

	b.  Also provides that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

8.  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.  The applicant's contention that his BCD should be upgraded has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations.

3.  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.

4.  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)                                         AR20110025132



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ABCMR Record of Proceedings (cont)                                         AR20110025132



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