IN THE CASE OF:	  

		BOARD DATE:	  2 December 2013

		DOCKET NUMBER:  AR20130004922 


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) to a general discharge. 

2.  The applicant states he completed the first full term of service and needs official documentation showing completion. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 U.S. Army Reserve Delayed Entry Program (DEP) on 26 July 1999.  On 1 September 1999, he was discharged from the DEP and enlisted in the Regular Army on 2 September 1999 for a period of 4 years.  He completed training and he was awarded military occupational specialty 31L (cable systems installer-maintainer). 

3.  On 26 August 2003, he was convicted by a general court-martial of wrongfully possessing approximately 3.79 pounds of marijuana with intent to distribute on or about 27 November 2002.  He was sentenced to a forfeiture of all pay and allowances, confinement for 2 years, and a BCD.

4.  On 14 May 2004, the convening authority approved the sentence, and except for the BCD, he ordered it executed.

5.  On 25 July 2007, the U.S. Army Court of Criminal Appeals concluded that the applicant had not shown the motion to suppress the marijuana based on a defective search warrant would have been meritorious had his defense team made such a motion at trial.  The applicant had not met the burden of demonstrating a deficiency in counsel's performance with resulting prejudice.  The judge's erroneous admission of the laboratory report, however, was harmless beyond a reasonable doubt.  The court affirmed the findings of guilty and the sentence.

6.  On 24 April 2008, the U.S. Court of Military Appeals denied his petition for a review of his case.

7.  General Court-Martial Order Number 83, issued by Headquarters, U.S. Army Armor Center and Fort Knox, KY, on 22 May 2008, shows the sentence to a BCD was affirmed and ordered duly executed.

8.  On 26 September 2008, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 3, as a result of court-martial, in pay grade E-1.  He completed 7 years, 9 months, and 11 days of net active service during the period under review with time lost from 26 August 2003 through 9 December 2004.  

9.  Item 18 (Remarks) of his DD Form 214 contains the entry, "Member Has Completed First Full Term of Service."

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation states in:

   a.  Paragraph 3-11 - 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 sentence affirmed before it could be duly executed.
	b.  Paragraph 3-7a - 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 had 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.

	c.  Paragraph 3-7b - 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.  

11.  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 change a discharge due to matters which should have been raised in the appellate process, 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 of record shows the applicant was convicted by a general court-martial of wrongfully possessing marijuana with the intent to distribute.  His approved sentence included 2 years of confinement.  On 26 September 2008, he was discharged pursuant to the sentence of a general court-martial with a BCD.  

2.  Trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

3.  He provided no evidence to show his discharge is unjust or as a result of racism.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.

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.  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.

5.  Item 18 of the DD Form 214 he was issued shows he completed his first full term of service.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130004922



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ABCMR Record of Proceedings (cont)                                         AR20130004922



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