IN THE CASE OF

		BOARD DATE:	    17 July 2014

		DOCKET NUMBER:  AR20130019387 


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 general under honorable conditions.

2.  The applicant states he was absent without leave (AWOL) twice and failed two urine samples without ever being enrolled in drug rehabilitation, which was supposed to be the procedure with alcohol and drug problems.  He states his choice of drug was marijuana.

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.  On 8 March 2005, he enlisted in the Regular Army for 5 years and 19 weeks.  On 7 November 2006, he was assigned to the 82nd Replacement Detachment, Division Special Troops Battalion, 82nd Airborne Division.

3.  On 15 June 2007, he was tried before a special court-martial.

	a.  He pled guilty and was found guilty of:

* being AWOL from on or about 21 December 2006 to on or about 22 March 2007
* wrongfully using marijuana on or about 5 September 2006 and on or about 4 October 2006
* wrongfully using marijuana on or about 28 February 2007 and on or about 27 March 2007

	b.  He pled not guilty and was found not guilty of failing to go at the time prescribed to his appointed place of duty on or about 4 April 2007.

	c.  His sentence consisted of 3 months of confinement and a bad conduct discharge.

4.  On 7 September 2007, the convening authority approved the sentence.

5.  On 14 November 2007, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 8 April 2008, the applicant's bad conduct discharge was ordered to be executed.

6.  On 6 August 2008, the applicant was discharged as the result of a court-martial.  He completed 2 years, 11 months, and 15 days of active service and he accrued 164 days of lost time.

7.  There is no record of the applicant's referral to the Army Substance Abuse Program (ASAP) in his official military personnel file.

8.  On 18 August 2010, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

10.  Army Regulation 600-85 (The Army Substance Abuse Program), paragraph 7-5b (Drug Testing Identification), states any Soldier identified as an illegal drug abuser through drug testing requires a mandatory referral to the ASAP counseling center for evaluation within 5 duty days of receipt of the validated positive drug test results.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  That the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record was 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 applicant contends he was never enrolled in a drug rehabilitation program which was supposed to be procedure with drug problems.  However, he provided no substantive evidence to support his contention.  Army Regulation 600-85 states any Soldier identified as an illegal drug abuser through drug testing requires a mandatory referral to the ASAP counseling center for evaluation within 5 duty days of receipt of the validated positive drug test results.  Therefore, in the absence of evidence to the contrary, it is presumed that the requirements of the regulation were met.

2.  The evidence shows that the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he 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 and the reasons therefor 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 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)                                         AR20130019387



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ABCMR Record of Proceedings (cont)                                         AR20130019387



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