BOARD DATE: 18 February 2014
DOCKET NUMBER: AR20130010646
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 that his bad conduct discharge (BCD) be upgraded to an honorable discharge.
2. The applicant states that he was a totally different person back then. He was a drug addict and alcoholic; however, he is no longer living that lifestyle and contributes daily to society. God and Narcotics Anonymous have changed his life and he has devoted his life to helping other addicts and alcoholics achieve the freedom he has experienced.
3. The applicant provides no additional documents with his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 28 January 1988 for a period of 4 years, training as a food service specialist and assignment to Fort Riley, Kansas.
2. He completed basic training at Fort Sill, Oklahoma and advanced individual training at Fort Lee, Virginia before being transferred to Fort Riley for his first and only assignment.
3. On 1 March 1989, the applicant was admitted to the base hospital for cocaine and alcohol abuse. He was discharged from the hospital on 6 March 1989.
4. On 8 July 1989, he went absent without leave (AWOL) and remained absent until he surrendered to military authorities on 8 August 1989. He went AWOL again from 22 to 25 August 1989.
5. On 6 October 1989, he was convicted by a special court-martial of the above period of AWOL and he was sentenced to confinement for 66 days, a forfeiture of $466.00 pay for 2 months, and a BCD.
6. On 21 February 1990, the U.S. Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.
7. There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
8. 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 contentions and supporting documents have been noted; however, he did not provide sufficient evidence to warrant an upgrade of his discharge when considering the serious nature of his offenses during such a short period of service.
2. The applicant's trial by court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable law and regulations and the BCD appropriately characterizes the misconduct for which he was convicted. As such, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case and there is an insufficient evidentiary basis for granting the applicant an upgrade of his BCD to any other characterization of service.
3. Additionally, 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. Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. As a result, clemency is also 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) AR20130010646
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