BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130007963 


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 an honorable discharge.

2.  The applicant states:

* he is a very productive member of society
* since his discharge, he has held many management positions in very prominent companies
* he currently holds a high position
* he has completely changed his life since the day he received his BCD

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.  The applicant enlisted in the Regular Army in pay grade E-1 on 16 June 1987. He completed training as an ammunition specialist.  He was advanced through the ranks to pay grade E-3.

3.  On 7 November 1988, the applicant was convicted pursuant to his pleas by a general court-martial of:

* two specifications of wrongful distribution of cocaine
* one specification of wrongful use of cocaine
* two specifications of unauthorized absences from his unit

4.  He was sentenced to a BCD, confinement for 18 months, forfeiture of $400.00 pay per month for 18 months, and reduction to pay grade E-1.

5.  The convening authority approved the sentence as adjudged and, except for that portion providing for the BCD, ordered the sentence executed.

6.  On 12 October 1989, the U.S. Army Correctional Activity ordered the execution of the applicant's BCD.  On 20 October 1989, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a general court-martial conviction.  He completed 1 year, 4 months, and 5 days of net active service during this period and he received a BCD.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-11 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 duly executed.

	b.  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.

	c.  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.

8.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  The available evidence shows he was convicted by a general court-martial of distribution of cocaine, use of cocaine, and unauthorized absences from his unit.

3.  The applicant's post-service conduct has been considered.  However, his military records document no acts of valor or significant achievement warranting special recognition.  He did not serve in the Army honorably or under honorable conditions.  The fact that he is a very productive member of society and currently holds a high position is not a basis for upgrading a discharge.  The BCD he received appropriately characterizes his service and is not overly severe considering the nature of his offenses.

4.  By law, any redress by this Board of the finality of a court-martial conviction under the Uniform Code of Military Justice, is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  In view of the foregoing, the applicant's requests should be denied.

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)                                         AR20130007963



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ABCMR Record of Proceedings (cont)                                         AR20130007963



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