IN THE CASE OF:	  

		BOARD DATE:	  10 July 2014

		DOCKET NUMBER:  AR20130017393 


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, in effect, an upgrade of his bad conduct discharge. 

2.  The applicant states since he was discharged, he went back to school, graduated with two degrees, and he is about to start a Master's degree.  He knows what he did was wrong and he took full responsibility for his actions.  He paid a heavy price consisting of confinement and a discharge.  

3.  The applicant provides:

* Copy of Geneva Conventions Identification Card
* College Transcripts
* Multiple certificates of completion and/or appreciation
* Letter from his mother

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 records show he enlisted in the Regular Army on 4 May 2004 and he held military occupational specialty 19K (M-1 Armor Crewmember).  He was assigned to the 2nd Battalion, 37th Armor, 1st Armored Division, Germany. 

3.  He was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and Overseas Service Ribbon. 

4.  On 1 December 2005, he was apprehended by German police for driving under the influence.  A subsequent investigation by military police (MP) revealed he was driving while his license was suspended. 

5.  On 18 January 2006, he was reprimanded by the Assistant Division Commander, 1st Armored Division, for driving while drunk.  The General Officer Memorandum of Reprimand was filed in his official record. 

6.  On 9 May 2006, the MPs were notified by German authorities of an attempted rape involving the applicant and a female.  Upon arrival, the MPs transported the victim to a hospital and began a search of the applicant.  He was apprehended while he was in his barracks room.  However, while attempting to place hand irons on him, he resisted arrest and escaped to his local girlfriend's house.  The MPs and German authorities ultimately located him and he was placed in pre-trial confinement.  He was declared a flight risk.

7.  On 2 June 2006, he was convicted by a general court-martial of:

* one specification of failing to go at the time prescribed to his appointed place of duty
* one specification of wrongfully using amphetamine
* one specification of wrongfully using marijuana
* one specification of wrongfully using methylenedilxymethamphetamine (MDMA)
* one specification of wrongfully distributing 20 pills of MDMA
* one specification of wrongfully distributing 10 pills of MDMA
* one specification of wrongfully distributing some amount of amphetamine
* one specification wrongfully impeding an investigation
* two specifications of being incapacitated for the performance of his duties as a result of overindulgence in intoxicating liquor

8.  The court sentenced him to a forfeiture of all pay and allowances, confinement for 15 months, and a bad conduct discharge.  He was confined at Fort Sill, OK.

9.  On 7 December 2006, the convening authority approved the sentence, and except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Staff Adjudicate General for the appellate review. 

10.  On an unknown date, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. 

11.  General Court-Martial Order Number 199, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, on 10 September 2009, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

12.  Accordingly, he was discharged from the Army on 22 December 2009.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation     635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial, other.  This form further shows the applicant's character of service as bad conduct and that he completed 4 years, 7 months, and 22 days of creditable military service with lost time from 2 May 2006 to 29 April 2007.  

13.  He submitted the following medical documents:

	a.  College transcripts from Caplan University.  

	b.  Letter, dated 8 August 2013, from his mother.  She states when he called her and told her what happened, she was devastated and suffered from depression.  She states she did not raise him this way.  Nonetheless, she states she trusts him and she believes he is a good member of society. 

	c.  Multiple post-service certificates of appreciation and completion. 

14.  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.

15.  Army Regulation 635-200 governs the separation of enlisted personnel.  

	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.  

	c.  Paragraph 3-10 provides that a Soldier will be given a bad conduct discharge 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial of multiple criminal offenses related to possession and distribution of illegal drugs.  The court sentenced him to a reprimand, forfeiture of pay and allowances, confinement, and a bad conduct discharge.  His trial by a general court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  Presumably the court considered his mental status when determining his sentence.

2.  The ABCMR does not reexamine issues of guilt or innocence under a court-martial conviction.  This is the court-martial convening authority and the appellate review function and cannot be upset by the ABCMR.  Any redress by this ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and 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.
3.  His post-service achievements are noted.  However, his court-martial conviction and resulting bad conduct discharge are a natural consequence of his own actions. 

4.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

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)                                         AR20130017393





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ABCMR Record of Proceedings (cont)                                         AR20130017393



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