IN THE CASE OF:	  

		BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20130019532 


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.  He states he believes his punishment was harsh based on his situation.  He was being held in a "stop loss" status and denied surgeries he needed.  His medical condition caused him serious pain that he could not control, but he was still required to perform the same as everyone else.  He takes full responsibility for his behavior, but he feels he was forced into the situation.  It is now difficult for him to receive any assistance at the state or Federal level.  He has had five surgeries that have left him nearly crippled.  Medical and financial assistance have been denied because of the type of discharge he received.  He had 20 years of service and two honorable discharges before the incident, and he was an outstanding Soldier.

3.  He provides no documentary evidence in support of his application.

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 25 February 2002, while serving as a member of the U.S. Army Reserve, the applicant was ordered to active duty at Fort Bragg, NC, in support of Operation Noble Eagle for a period of up to 12 months (later amended to up to 24 months) with a "will proceed" date of 28 February 2002.  At the time, he held the rank/pay grade of sergeant first class/E-7.  

3.  On 25 June 2003, he was issued a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), informing him he had completed the required years of qualifying reserve service to be eligible for retired pay upon application at age 60.  

4.  On 30 September 2003, Headquarters, XVIII Airborne Corps, Fort Bragg, NC, issued General Court-Martial Order Number 20.  The order shows that, pursuant to his pleas, the applicant was found guilty of three specifications of wrongfully using cocaine.  He was sentenced to be discharged from the service with a BCD and to be confined for 6 months.

5.  The record shows that, prior to approval of the applicant's sentence, his defense counsel submitted a request for clemency, specifically requesting that the general court-martial convening authority not approve a BCD.  His defense counsel argued, in effect, that a BCD was not warranted based on the length of the applicant's service, the fact that his offense caused no harm to anyone other than the applicant, and that he had turned to cocaine to alleviate pain from a degenerative hip condition.  Defense counsel stated that the applicant had "numerous physical limitations resulting from his degenerative hip condition," that if he were to lose his civilian employment he had "little in the way of financial or other resources to fall back onto," and that it would provide him peace of mind if he knew he could rely on the benefits he would otherwise receive as a result of his service to the Army for more than 20 years.

6.  General Court-Martial Order Number 20 dated 30 September 2003 shows the convening authority approved the sentence and, except for the part of the sentence extending to a BCD, ordered the sentence to be executed.

7.  On 14 September 2004, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

8.  On 10 January 2005, the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for grant of review of the decision of the U.S. Army Court of Criminal Appeals.

9.  On 27 January 2005, Headquarters, U.S. Army Armor Center Fort Knox, KY, issued General Court-Martial Order Number 20 ordering the execution of the affirmed sentence.

10.  His final DD Form 214 (Certificate of Release or Discharge from Active Duty) is not available.  However, an Archived DD Form 214 shows that on 1 April 2005 he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, with a BCD in the rank/pay grade of private/E-1.  The Archived DD Form 214 shows he had completed:

* 2 years, 4 months, and 16 days of net active service this period
* 2 years, 11 months, and 26 days of total prior active service
* 21 years, 11 months, and 28 days of total prior inactive service

11.  His service medical records are not available for review.

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

	a.  Paragraph 3-11 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the affirmed sentence ordered duly executed.

	b.  Paragraph 3-7a provides that an HD 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 GD 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.

13.  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 was convicted of three specifications of using cocaine.  His conviction and sentence by a general 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 Military Review.

3.  The available evidence does not include and he has not provided medical records documenting his medical condition.  However, even if documentary evidence of his medical condition were available, such evidence would not mitigate the repeated use of an illegal drug by a senior noncommissioned officer who had more than 20 years of service.  Any Soldier of his rank and length of service would have been well aware of the repercussions of being caught using any illegal substance let alone cocaine.

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)                                         AR20130019532





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ABCMR Record of Proceedings (cont)                                         AR20130019532



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