IN THE CASE OF:	  

		BOARD DATE:	  20 May 2014

		DOCKET NUMBER:  AR20130016582 


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 upgrade of his under other than honorable conditions discharge to either a general, under honorable conditions discharge or an honorable discharge.

2. The applicant states:

* in 1993, he made the mistake of delivering a package without knowing its contents
* he feels he was trapped in a scheme and has paid his debt to society
* it is not fair for him to pay for a mistake for the rest of his life
* in 1993, he was 23 years old, away from home, and very irresponsible in how he made decisions
* he has straightened out his life, but this discharge keeps him from getting a good job in order to provide for his family 

3. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and a self-authored statement. 

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's record shows he enlisted in the Regular Army on 12 June 1990 at the age of 21.

3. The applicant's record contains a copy of Headquarters, Fort Hood, Fort Hood, TX, General Court-Martial (GCM) Order Number 2, dated 13 January 1992, which shows he pled guilty and was found guilty of wrongfully distributing approximately 2.7 grams of cocaine, a controlled substance.

4.  The applicant was sentenced to be reduced to private (PV1)/E-1, forfeiture of all pay and allowances, confinement for a period of 15 months, and to be dishonorably discharged from the U.S. Army with a BCD.  The sentence was approved and, except for the part of the sentence extending to a BCD, was executed.

5. The applicant's record contains a copy of Headquarters, Fort Hood, Fort Hood, TX, GCM Order Number 58, dated 29 September 1992.  This order shows, in pertinent part, that the applicant's sentence was approved and the BCD was ordered duly executed.

6.  The applicant's DD Form 214 shows he was discharged on 26 March 1993, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-10, by reason of court-martial - other.  This form further lists the applicant's character of service as bad conduct.

7.  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 ABCMR acts, the Board 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.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-11 (BCD) states 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 ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

	a.  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.

	b.  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.  

DISCUSSION AND CONCLUSIONS:

1. The applicant's contention that his discharge should be upgraded to general, under honorable conditions because it is unfair he has to live with a decision he made in 1993, when he was 23 years old, was carefully considered and found to be without merit.  

2. The evidence of record shows the applicant was convicted by a GCM and he received a BCD. Trial by a GCM was warranted by the serious nature of the offenses for which the applicant was charged and convicted. The sentence is commensurate with the misconduct for which the applicant was convicted.

3.  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 was 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)                                         AR20130016582





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ABCMR Record of Proceedings (cont)                                         AR20130016582



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