IN THE CASE OF:	   

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120012897 


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, in effect, an upgrade of his bad conduct discharge (BCD). 

2.  He states he was discharged from the Army because of an informant.  He offers that he was young and did not know what happened.  He adds that since he left the Army, he has gone to college and became a U.S. citizen.   

3.  He does not provide any 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.  The applicant enlisted in the Regular Army on 17 January 1989 for a period of 4 years.  He was over 24 years of age at the time of enlistment.
3.  On 8 February 1990, he was convicted by a special court-martial of:  

* resisting arrest
* wrongfully distributing marijuana in the hashish form
* wrongfully possessing 8 grams, more or less, of marijuana in the hashish form
* breaking restriction

4.  The court sentenced him to reduction to the grade of E-1, confinement for 
4 months, a forfeiture of $428.00 pay for 4 months, and a BCD.  The convening authority approved the sentence and the U.S. Army Court of Criminal Appeals affirmed the findings and the sentence on 26 October 1990.  The BCD was ordered executed on 28 March 1991.

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 29 April 1991 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3.  He had completed 2 years and 3 days of active service with the period from 8 February to 17 May 1990 listed as lost time.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 establishes policy and procedures for separating members with a dishonorable discharge or a BCD.  It provides that a Soldier will 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 affirmed sentence must be ordered duly executed.

7.  Army Regulation 635-200, 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.

8.  Army Regulation 635-200, 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.  

9.  Court-martial convictions stand as adjudged or as 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 available records show the applicant was more than 24 years of old at the time of his enlistment and 27 years old at the time of discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  He was convicted by a special court-martial which was warranted by the gravity of the offense charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  He was given a BCD pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

4.  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.  Therefore, given his offense and absent any mitigating factors, the type of discharge directed and the reasons 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)                                         AR20120012897



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ABCMR Record of Proceedings (cont)                                         AR20120012897



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