IN THE CASE OF:	  

		BOARD DATE:  13 September 2012

		DOCKET NUMBER:  AR20120003894 


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.

2.  He states he feels his discharge was inequitable because it was based solely on one incident and does not reflect his years of honorable service with no adverse action against him.  He was involved in an incident with five other Soldiers, amongst whom were noncommissioned officers.  He was honest about the incident but all the others involved denied and lied about their involvement.  Thus he was the only one punished.  He simply could not compromise his integrity when he was confronted by his command.  He acknowledges he made a mistake but it was due to many situations including that while he was deployed to Iraq his ex-wife was abusing drugs and lost his son to adoption.  He was denied emergency leave to handle the situation at home.

3.  He provides:

* letter of support
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 137-0200 

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.  On 7 December 2003, he was ordered to active duty from a U.S. Army Reserve troop program unit in support of Operation Iraqi Freedom (OIF).

3.  General Court-Martial Order Number 7, dated 28 December 2005, shows he

   a.  pled guilty and was found guilty of wrongfully using diazepam and wrongfully distributing 60 milligrams of diazepam; and

   b.  pled not guilty of raping Specialist C.A.D., but guilty of a violation of Article 134 and was found not guilty, but guilty of a violation of Article 134.

4.  The convening authority approved only so much of the adjudged sentence as pertained to reduction to the grade of private/E-1, forfeiture of all pay and allowances, confinement for 21 months, and a bad conduct discharge.

5.  General Court-Martial Order Number 169, dated 9 August 2007, shows the sentence as modified by the U.S. Army Court of Criminal Appeals was affirmed and that portion of the sentence pertaining to confinement had been served.  It shows the appellate review was completed and the bad conduct discharge was ordered executed.

6.  Accordingly, the applicant was discharged as a result of a court-martial on 23 May 2008 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, court-martial.  He was given a bad conduct discharge.  The DD Form 214 he was issued shows he completed 3 years, 1 month, and 14 days of active service during this period.  Item 29 (Dates of Time Lost During This Period) contains the entry, "Under 10 USC 972:  20050524-20060926."

7.  He provides a letter of support from Staff Sergeant (SSG) JWA (Retired).  SSG JWA states that in regard to the applicant's character and the incident during the applicant's tour of duty in OIF the applicant was and is the most trusted man he ever had the pleasure of knowing.  He states the applicant was very instrumental in the success of their missions.  He adds that he is very aware of the incident in which the applicant was involved and the charges he faced.  There were many others involved in this incident including noncommissioned officers.  The applicant was the only individual who was honest about the incident while the others simply lied.  He respects the applicant for this even though it cost him dearly.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy for the separation of enlisted personnel.

	a.  paragraph 3-11, in effect at the time, provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the affirmed sentence ordered duly executed.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

	c.  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.

9.  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.  A letter from SSG JWA indicates the applicant was a person of integrity and served well during his tour in support of OIF.  However, the fact remains that he admitted to wrongfully using diazepam, wrongfully distributing 60 milligrams of diazepam, and a violation of Article 134.

2.  The appellate review was completed and the affirmed sentence ordered executed.  His conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time and the discharge appropriately characterizes the misconduct for which he was convicted.

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 were therefore appropriate.  As a result, clemency is not warranted in this case.

4.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge.

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)                                         AR20120003894



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ABCMR Record of Proceedings (cont)                                         AR20120003894



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