IN THE CASE OF:	   

		BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20130018078 


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).

2.  The applicant states he received a BCD as a result of court-martial that was based on one serious infraction.  His discharge was unjust because the two Caucasian Soldiers who were also involved testified against him at his court-martial and, as a result, they were discharged under honorable conditions.

   a.  He states that he was asked by the other Soldiers to help them get drugs in an inner-city, African-American neighborhood in which they had previously been robbed.  He agreed to run errands for them and made the decision in the spirit of camaraderie.
   
   b.  One of the Soldiers was arrested for soliciting a prostitute.  At the time, he had drugs in his possession and informed the military police that he had obtained them from the applicant.

   c.  He asserts his African-American race was a major factor in determining the punishment and the type of discharge he received, which was much harsher than that of his peers who were Caucasian.

   d.  Consequently, the other individuals are eligible for veterans' benefits and he is not. He adds that he is an independent contractor in the construction industry.  He does not have health insurance and he would like to use his education benefits.

3.  The applicant provides the following documents:

* a self-authored statement
* court-martial orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Veteran's Guide booklet

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 4 November 2003.

3.  In May 2006, the applicant was convicted at a general court-martial (GCM) at Fort Bragg, North Carolina, of:

* failing to go at the time prescribed to his appointed place of duty
(two specifications)
* failing to obey an order from his superior commissioned officer by operating a motor vehicle on Fort Bragg while on-post driving privileges were suspended
* operating a passenger vehicle while under the influence of alcohol
* wrongfully using cocaine and marijuana (three specifications)
* wrongfully distributing cocaine
* stealing the private funds of a Soldier, of a value of less than $500.00

4.  On 7 December 1983, the GCM Convening Authority approved only so much of the sentence extending to:

* reduction to the grade of private/E-1
* confinement for 15 months
* a BCD

   a.  He credited the applicant with 161 days of confinement against the sentence to confinement.

   b.  He ordered execution of the sentence, except that part of the sentence extending to a BCD.

5.  GCM Order Number 245, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 21 November 2007, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, and that portion of the sentence pertaining to confinement having been served, the sentence was ordered duly executed.

6.  On 21 December 2007, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 
chapter 3, as a result of court-martial (other) with a BCD.  The DD Form 214 he was issued for this period of service shows he completed 3 years, 3 months, and 15 days of net active service.

7.  In support of his request the applicant provides a copy of a Vatterott Educational Centers, Inc., Veteran's Guide, dated 12 March 2013, that provides general information on procedures for applying for Veterans Affairs educational benefits.

8.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is 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.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 contends his BCD should be upgraded because the punishment and type of discharge he received was unjust and discriminatory, others involved received lesser punishments, and he would like to enhance his financial and vocational opportunities.

2.  The punishments that other Soldiers may have received for offenses they committed are not under review in this, the applicant's case.  Therefore, this contention will not be discussed further in this Record of Proceedings.

3.  Aside from the applicant's contention in his application to this Board, there is no evidence of record that shows the punishment and type of discharge he received as a result of court-martial was unjust or discriminatory.  In any event, his contentions were matters for consideration during his court-martial and the appeal process.

4.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  He was convicted of more offenses than just buying drugs.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

5.  This period of military service under review, during which the applicant committed and was convicted of serious offenses, does not demonstrate and cannot be categorized as honorable or under honorable conditions.

6.  Based on the evidence of record, it is concluded that the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

7.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130018078



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ABCMR Record of Proceedings (cont)                                         AR20130018078



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