IN THE CASE OF:	  

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130013471 


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 a general discharge.

2.  The applicant states:

   a.  It was the decision of the judge in his case not to give him a dishonorable discharge but a bad conduct discharge.  This was due to the nature of the crime as well as the fact that he and his family risked their lives on multiple occasions to provide assistance to the U.S. Army Criminal Investigation Command (commonly referred to as CID) and the Drug Enforcement Agency (DEA).  The judgment at the time was acceptable and changing his service to dishonorable goes directly against the judge's decision.
   
   b.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his first honorable tour of duty.  The particulars of his case should lean the judgment to the honorable decision instead of allowing the placement of dishonorable to a second tour of duty that was otherwise untarnished.  The automatic change of his service to dishonorable has adversely affected his ability to obtain work and will keep him from obtaining a Department of Veterans Affairs (VA) loan for a home.

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 on 7 March 1985 for a period of 3 years.  On 11 September 1985, he extended his enlistment for 8 months in order to meet the requirements of an overseas tour with dependents.  On 17 June 1988, he extended his enlistment for 2 years.

3.  On 12 December 1988, he was assigned to the 6th Battalion, 27th Field Artillery Regiment, Fort Sill, OK.

4.  On 26 January 1990, he was convicted by a general court-martial of:

* one specification of the wrongful use of marijuana between 18 September and 19 October 1989
* three specifications of the wrongful distribution of cocaine on three different dates in August and September 1989

5.  The court sentenced him to reduction to private (PVT)/E-1, forfeiture of all pay pay and allowances, confinement for 30 months, and a bad conduct discharge.  The sentence was adjudged on 26 January 1990. 

6.  On 13 February 1990, the convening authority approved only so much of the sentence that provided for the reduction to PVT, forfeiture of $400 per month for 12 months, confinement for 12 months and 1 day, and a bad conduct discharge and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review and the applicant was subsequently assigned to the U.S. Army Correctional Brigade, Fort Riley, KS.

7.  General Court-Martial Order Number 572, dated 19 September 1990, issued by the U.S. Army Correctional Brigade, Fort Riley shows the applicant's sentence having been affirmed and complied with, the convening authority ordered his bad conduct discharge executed.  On 26 October 1990, he was discharged accordingly.

8.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct characterization of service.  He completed 5 years, 3 months, and 9 days of total active service with 274 days of lost time due to being in confinement.

9.  Item 18 (Remarks) of his DD Form 214 contains the entry "Continuous honorable active service from 7 March 1985 until 16 June 1988."

10.  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.

11.  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.

12.  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 evidence of record confirms the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his bad conduct discharge appropriately characterized the misconduct for which he was convicted.  

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  There is no evidence that shows his discharge or characterization of service was changed to dishonorable.

4.  After a review of his record of service, it is clear his service from 17 June 1988 through 26 October 1990 did not meet the criteria for a general discharge, or any other characterization of service other than the one he received.  

5.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20130013471





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ABCMR Record of Proceedings (cont)                                         AR20130013471



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