IN THE CASE OF:	  

		BOARD DATE:	  24 September 2014

		DOCKET NUMBER:  AR20140002928 


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 upgrade of his bad conduct discharge (BCD).

2.  He states he has continued to be a productive member in his family, society, and on the job.  He adds that the status of his discharge has caused him complications in advancing on his job. 

3.  He provides employment information and a letter from the Department of Veterans Affairs (VA), dated 15 January 2014. 

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 12 February 1992.  He reenlisted twice and the highest grade he achieved was sergeant (SGT)/E-5. 

3.  On 23 February 1999, he was convicted by a general court-martial of wrongfully distributing 9.4 grams of cocaine and wrongfully having sexual intercourse with a woman not his wife on 1 March and 30 September 1998.

4.  The court sentenced him to reduction to the grade of E-1, a forfeiture of all pay and allowances, confinement for 6 months, and a BCD.  The convening authority approved the sentence and the U.S. Army Court of Criminal Appeals affirmed the findings and sentence on 27 February 2001.  The BCD was ordered executed.

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 11 May 2001 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3.  He had completed 8 years, 9 months, and 11 days of total active service with the periods from 23 February to 10 August 1999 listed as time lost.

6.  The applicant provided:

   a.  Several documents from the REF-CHEM Company that verify his employment on 19 June 2013 and his subsequent termination on 3 January 2014 due to force reduction.  The documents show while the applicant worked for the company, he was a competent employee.
   
   b.  A letter from the VA explaining that the VA was unable to pay VA education benefits.   

7.  Army Regulation 635-200 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 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.  

8.  Court-martial convictions stand as adjudged or as 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.  Although the applicant provided several documents verifying his employment and subsequent termination due to force reduction, good post-service conduct alone is not a basis for upgrading a discharge.

2.  The evidence shows he was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  He was given a BCD pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

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.  Given his offense and absent any mitigating factors, the type of discharge directed and the reasons 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)                                         AR20140002928





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ABCMR Record of Proceedings (cont)                                         AR20140002928



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