IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120000175 


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:

* upgrade of his bad conduct discharge (BCD)
* final four months of pay
* time off compensation

2.  The applicant states:

	a.  He was 19 years of age when he committed this crime.  He was 20 years of age when he was arrested.  He was interrogated at 2:00 a.m. after being aggressively confronted and scared to death by several armed Soldiers.  He would never have given up his rights to remain silent had he been read his rights and not been put in that situation.

	b.  The prosecutor and his attorney were friends and cut a deal without any consideration that he was willing to face the music and that he was also a good Soldier who wanted to be rehabilitated and given a second chance.  He was honest and upfront through the entire process and he was not given leniency.

   c.  He never received the final four months of pay he was supposed to be paid.  He never received his time off compensation that he had earned and was awarded to him by the court.  He did not sell marijuana, but helped a friend find it.  Yes this was wrong, but he was not making money or doing something like this on a regular basis and yes he wants to be forgiven.  His mother is now dead and she always wanted him to regain his honor.
   d.  He has four children now and an awesome wife.  He lives a nice comfortable life in the Portland, OR, area.  This means nothing to him compared to the honor of serving his country and doing the best he could.  He was awarded the company commander driver position just before his arrest.  His case was rushed through and he was not properly read his rights and given a fair trial.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army (RA) in pay grade E-1 on 5 May 1995 for a period of 3 years.  On the date of his enlistment in the RA, he was 18 years, 11 months, and 22 days of age.  He completed training and he was awarded military occupational specialty 11M, Fighting Vehicle Infantryman.

2.  On 7 February 1997, he was convicted by a special court-martial of:

* one specification of wrongfully distributing marijuana on 15 November 1996
* two specifications of wrongfully using marijuana between 10 and 15 November 1996 and between 20 and 25 November 1996

3.  The court sentenced him to a reduction to pay grade E-1, a forfeiture of $600.00 pay per month, confinement, and a BCD.

4.  On 21 April 1997, the convening authority approved the sentence and except for the BCD, ordered the sentence duly executed.

5.  There is no evidence he petitioned the U.S. Court of Appeals for the Armed Forces for a review of his case.

6.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, Special Court-Martial Order Number 14, dated 16 March 1998, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's BCD sentence executed.

7.  He was discharged on 15 May 1998 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial, other.  He was credited with completing 2 years, 5 months, and 14 days of net active service and time lost from 7 February 1997 to 4 May 1997.

8.  Item 18 (Remarks) of his DD Form 214 shows the entry, "Excess Leave (Creditable for All Purposes Except Pay and Allowances) - 376 days:  5 May 1997 to 15 May 1998."

9.  There is no evidence of record and he did not provide any evidence that shows he never received his final pay and awarded time off compensation prior to his BCD.

10.  On 28 October 2011, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 provided that a Soldier would 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 could be duly executed.

12.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

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 Army Board for Correction of Military Records is not empowered to change a court-martial 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 evidence shows the applicant was convicted by a special court-martial of one specification of wrongfully distributing and two specifications of using marijuana between 10 and 25 November 1996.  He was discharged pursuant to the sentence of a special court-martial and he was issued a BCD after the sentence was affirmed.

2.  His contention that his age at the time of his arrest should be taken into consideration is without merit.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

3.  He provided no evidence to show that his sentence was unjust.  There is no error or injustice in his record.  He provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations with due process.  It appears all requirements of law and regulation were met and his rights were fully protected throughout the trial and appellate process.

4.  Trial by special court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which the applicant was convicted.  

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.  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.

6.  With regard to his contentions that he did not receive any final pay and time off compensation awarded by the court, there is no evidence of record he is entitled to any final pay and time off compensation and he has provided no evidence to the contrary.  No pay records were available for review.  There is simply no information or available evidence to support any entitlement to final pay and time off compensation.

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)                                         AR20120000175



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ABCMR Record of Proceedings (cont)                                         AR20120000175



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