BOARD DATE:	  8 May 2014

		DOCKET NUMBER:  AR20130014714 


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 (HD).

2.  The applicant states during most of his service he was young and having marriage problems.  He was married at the age of 22 and was under a lot of stress.  Since his departure from the service he has gotten a divorce and moved on with his life.  He has matured and been blessed with two grandchildren.  He is encouraging his son to join the military.  He has been eager to correct his past misfortunes and part of that is making good with his country that he loves dearly.  Despite his mistakes during his service he is still a Soldier at heart and he is hoping his country will accept his apology.

3.  The applicant provides 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.  On 30 November 1993, the applicant was discharged from the U.S. Army Reserve for the purpose of enlistment into the Regular Army (RA) on 1 December 1993 for 3 years.

3.  He served honorably in the RA from 1 December 1993 until he was discharged for immediate reenlistment on 21 May 1996.  On 22 May 1996, he reenlisted in the RA.  The highest rank he held was specialist/pay grade E-4.

4.  On 8 July 1997, Headquarters, United States Army Armor Center and Fort Knox, issued Special Court-Martial Order Number 47.  This order shows he pled guilty and was found guilty of the following offenses:

* between on or about 16 November and 16 December 1996 wrongfully using marijuana
* on or about 8 February 1997 wrongfully distributing 1.51 grams of marijuana
* on or about 8 February 1997 wrongfully using marijuana  
* on or about "June 95" wrongfully using marijuana 

5.  He was sentenced to be confined for 2 months, forfeiture of $150 pay per month for 2 months, and to be discharged with a BCD.

6.  On 23 December 1997, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

7.  On 11 August 1998, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, with a BCD in accordance with the affirmed sentence.  He completed 4 years, 10 months, and 26 days of total active military service and 1 year, 11 months, and 11 days of inactive service.  He had time lost from 8 July 1997 to 26 August 1997.  

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

	a.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable discharge or BCD) pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered 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.

9.  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 does not support the applicant's request for an upgrade of his BCD to an HD.

2.  He pled guilty to and was convicted of wrongfully distributing marijuana and multiple instances of wrongfully using marijuana.  His conviction and sentence by special court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given his BCD until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Criminal Appeals.  

3.  His statements concerning his age at the time and marriage problems are noted.  However, these do not mitigate the serious offenses for which he was tried and convicted.

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.  Absent any mitigating factors, the type of discharge directed and the reasons therefore 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)                                         AR20130014714



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ABCMR Record of Proceedings (cont)                                         AR20130014714



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