IN THE CASE OF:	  

		BOARD DATE:  11 October 2012

		DOCKET NUMBER:  AR20120007536 


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 to honorable.

2.  The applicant states he was a very young and confused man whose life has now changed to the better ways of life.  He received two Army Good Conduct Medals.  He is now older and this has caused great grief in his life.

3.  The applicant provides no additional evidence.

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.  He enlisted in the Regular Army on 6 October 1981 at 18 years of age.  He immediately reenlisted on 15 October 1986.  He was promoted to specialist five/
pay grade E-5 on 4 February 1985 and laterally appointed to sergeant pay/grade E-5 on 1 October 1985.

3.  On 12 October 1988, he pled guilty and was found guilty before a special court-martial of wrongfully possessing approximately one gram of cocaine.

4.  His sentence consisted of:

* reduction to pay grade E-1
* confinement for 2 months
* a bad conduct discharge

5.  On 6 January 1989, the sentence was approved by the convening authority.  On 11 May 1989, the U.S. Army Court of Military Review affirmed the findings and the sentence of the special court-martial.

6.  On 9 August 1989, the applicant's sentence to a bad conduct discharge was ordered executed.

7.  On 20 September 1989, he was discharged with a bad conduct discharge.  He completed 7 years, 9 months, and 26 days of active service with 49 days of lost time.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded the Army Good Conduct Medal (2nd Award).

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be 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 had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge under honorable conditions was a separation for an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.  

10.  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 age at the time of his enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  He was almost 25 years of age at the time of his offense.  Therefore, his age cannot be considered a mitigating factor in this case.

2.  He had been promoted to sergeant, a position of authority and responsibility.  In promoting him to sergeant, the Army reposed special trust and confidence in his patriotism, valor, fidelity, and professional excellence.  As a sergeant, he was in a position of trust and responsibility and he was responsible for the welfare of those assigned under him.  He violated this trust and confidence by possessing cocaine, which he well knew was a violation of regulations.  His failure to lead by example also makes his service unsatisfactory.

3.  He was previously awarded two Army Good Conduct Medals.  However, this does not negate the gravity of the offense he was convicted of, especially being a sergeant with his years of experience.

4.  The evidence shows his trial by court-martial was warranted by the gravity of the offense for which he was convicted.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he 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.

6.  In view of the above, there is an insufficient basis to upgrade his discharge to honorable or general under honorable conditions.

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 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)                                         AR20120007536



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ABCMR Record of Proceedings (cont)                                         AR20120007536



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