IN THE CASE OF:	  

		BOARD DATE:  25 September 2012

		DOCKET NUMBER:  AR20120004596 


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) and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Army Good Conduct Medal.

2.  He states he believes his discharge was unjust and that the omission of the Army Good Conduct Medal from his DD Form 214 was unintentional.

3.  He provides:

* a DD Form 214
* Personnel Service Company, 3rd Armored Cavalry Regiment, Fort Bliss, TX, Permanent Order 3-1, dated 12 January 1998

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 14 February 1985.  Upon completion of initial entry training he was awarded military occupational specialty 76P (Materiel Control and Accounting Specialist).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  However, he held the rank/grade of private/E-1 at the time of separation.

3.  His record contains and he also provides Personnel Service Company, 3rd Armored Cavalry Regiment, Fort Bliss, TX, Permanent Order 3-1, dated 12 January 1998, which show he was projected to be awarded the Army Good Conduct Medal for exemplary behavior, efficiency, and fidelity during active federal military service for the period 14 February 1985 through 13 February 1988.

4.  His record contains a DA Form 268 (Report for Suspension of Favorable Personnel Actions) which shows a "FLAG" was initiated on 10 February 1988 based upon the fact that he was under charges or control of civil authorities and "under investigation with view toward Court-Martial."

5.  His record contains a memorandum rendered by the Staff Judge Advocate, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, TX, Subject:
Request to Retain Soldier Beyond Expiration Term of Service (ETS), dated 
11 March 1988, which shows he was arrested by civil authorities on 27 January 1988 for distributing some amount of cocaine.  It was noted that the applicant's ETS was scheduled for 13 February 1988 and it was requested that his ETS be extended beyond 30 days so he could be tried by court-martial for the aforementioned offense.  The request was granted by the Commanding General on the same date.

6.  Special Court-Martial (SPCM) Order Number 20, published by Headquarters, U.S. Army Air Defense Artillery Center, Fort Bliss, dated 10 November 1988, shows the applicant pled not guilty, but was found guilty of two counts of violating Article 112a of the Uniform Code for Military Justice (UCMJ) for wrongful distribution of cocaine on 25 and 27 January 1988.  The following sentence was adjudged on 23 September 1988:

* Bad conduct discharge
* Confinement for 6 months
* Reduction to private/E-1


7.  On 10 November 1988, the sentence was approved and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  Pending completion of the appellate review, the applicant remained in confinement until 14 February 1989.

8.  On 15 February 1989, the applicant was placed on excess leave for an indefinite period awaiting the outcome of an appellate review of his punitive discharge.

9.  On 17 October 1989, the U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.

10.  SPCM Order 24, issued by U.S. Army Correctional Brigade, Fort Riley, KS, on 17 April 1990, shows the appropriate authority ordered the BCD to be duly executed.

11.  His DD Form 214 shows he was discharged on 24 April 1990 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 as the result of court-martial.  This form also shows his character of service as "Bad Conduct."  He was credited with lost time during the period 23 September 1988 through 14 February 1989 due to imprisonment.  His DD Form 214 does not show award of the Army Good Conduct Medal.

12.  Item 4 (Assignment Considerations) of his DA Form 2-1 (Personnel Qualification Record - Part II) shows he was not recommended for further service, effective 24 April 1990.

13.  On 10 August 1990, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his BCD and he was subsequently scheduled for a personal appearance before the board.  However, on 5 January 1992, he withdrew his request from consideration and it was returned to him without action on 21 January 1992.

14.  Army Regulation 635-200:

	a.  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.

	b.  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.

	c.  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.

15.  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.

16.  Army Regulation 600-8-22 (Military Awards) provides the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  The immediate commander’s decision to award the Army Good Conduct Medal will be based on his or her personal knowledge and of the individual’s official records for the periods of service under previous commanders during the period for which the award is to be made.  However, there is no right or entitlement to the medal.

17.  Army Regulation 600-8-22 further provides that disqualification for an award of the Army Good Conduct Medal can occur at anytime during a qualifying period.  Conviction by courts-martial terminates a period of qualifying service; a new period begins the following day after completion of the sentence imposed by the court-martial.  Individuals for whom a bar to reenlistment has been approved are not eligible for award of the Army Good Conduct Medal.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are duly noted.  However, they are not sufficiently mitigating to absolve his misconduct during his period of service.

2.  The available evidence clearly shows Permanent Order 3-1 awarding him the Army Good Conduct Medal for the period of 14 February 1985 through 
13 February 1988 was published on 12 January 1988, a month prior to the date he was projected to complete a 3 year period of honorable service.
3.  The available evidence also shows he was arrested on 27 January 1988; an administrative flagging action was initiated to prevent favorable actions for him commencing on 10 February 1988; and he was ultimately found guilty of wrongful distribution of cocaine on 25 and 27 January 1988.

4.  In view of the fact that the applicant failed to complete a qualifying 3 year period of honorable service for award of the Army Good Conduct Medal, he was not recommended for further service, and he was subsequently convicted by a special court-martial and disqualified from eligibility for award of the Army Good Conduct Medal.  Therefore, he is not entitled to correction of his DD Form 214 to show receipt of this award.

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

6.  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.

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)                                         AR20120004596



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ABCMR Record of Proceedings (cont)                                         AR20120004596



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