IN THE CASE OF

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140001257 


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.  The applicant states:

   a.  he was a good Soldier who scored very high to volunteer for service; and 
   
   b.  he submits an alcohol assessment and an Anger Management/Domestic Violence Program completion certificate that shows he completely turned his life around.
   
3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Lakeside-Milam Recovery Centers letter
* Progress Report
* Character Reference Contact Listing 

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 military records show he enlisted in the Regular Army on 
2 October 1984.  He was trained in and awarded military occupational specialty 52D (Power Generation Equipment Repairer).

3.  His record confirms he twice accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for the indicated offenses:

* 15 August 1985 – for leaving his appointed place of duty without authority on 6 August 1985
* 12 May 1986 - for failing to go at the time prescribed to his appointed place of duty on 1 March 1986

4.  On 9 June 1986, pursuant to his pleas, a special court-martial (SPCM) convicted the applicant of twice violating Article 112 of the UCMJ for wrongfully distributed marijuana in the amount of .22 grams on 4 April 1986 and 8.10 grams on 8 April 1986.  The sentence imposed by the military judge was:

* reduction to private/E-1
* forfeiture $400.00 pay per month for 3 months
* confinement at hard labor for 3 months
* to be discharged from the service with a BCD

5.  On 18 July 1986, the SPCM convening authority approved the sentence with the exception that execution of the portion adjudging confinement in excess of 45 days was suspended for 45 days.

6.  SPCM Order Number 22, dated 17 April 1987, issued by Headquarters, U.S. Field Artillery Center Fort Sill, OK, directed, the guilty findings and sentence having been finally affirmed, that the sentence be duly executed.  On 20 May 1987, the applicant was discharged accordingly after completing 2 years, 6 months, and 12 days of creditable active military service.

7.  On 15 January 2014, the applicant’s appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  However, he exceeded the ADRB's 15-year statute of limitations and thereafter appealed to this Board.

8.  The applicant provides a Lakeside-Milam Recovery Centers letter, dated 10 January 2014.  It shows he did not require treatment or drug and alcohol intervention at that time.

9.  He also provides an Anger Management/Domestic Violence Program Progress Report showing he had no apparent substance abuse and did not need to participate in support groups.  His continued participation in the program was recommended.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Section IV prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would 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.

11.  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 his punitive discharge should be upgraded because he was a good Soldier, scored very high to volunteer for service, and because he has turned his life completely around.  However, while his drug and alcohol screening and his social, emotional, and behavioral assessments are noteworthy, his claim is insufficiently mitigating to grant the requested relief in this case.

2.  The evidence of record confirms, pursuant to his pleas, an SPCM convicted the applicant of charges which resulted in his sentence that included a BCD.  His 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 regulation and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  Given the applicant’s undistinguished record of service and absent any compelling mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency in the form of either a fully honorable or a general under honorable conditions discharge is not warranted in this case.

4.  In view of the foregoing, there is no 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)                                         AR20140001257





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ABCMR Record of Proceedings (cont)                                         AR20140001257



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