IN THE CASE OF:	   

		BOARD DATE:	  11 June 2015

		DOCKET NUMBER:  AR20140009879 


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 is making this request because he is applying for executive clemency from the Governor of Colorado.  He is no longer using drugs and he is trying to be a better person.   

3.  The applicant does not provide any 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.  The applicant enlisted in the Regular Army on 9 September 1997.  He completed training and was awarded military occupational specialty 88M (Motor Transport Operator).
3.  He was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and Parachutist Badge. 

4.  On 17 January  2002, he was convicted by a general court-martial of:

* eleven specifications of failing to go at the time prescribed to his appointed place of duty
* one specification of using disrespectful language towards a noncommissioned officer
* one specification of failure to go to his appointed place of duty
* one specification of wrongfully using methylenedioxymethamphetamine 
* one specification of wrongfully using methamphetamine
* one specification of wrongfully using cocaine
* one specification of indecent exposure

5.  His sentence consisted of reduction to the rank/grade of private/E-1, a forfeiture of $700 pay for 5 months, confinement for 60 days, and a BCD.

6.  General Court-Martial Order Number 118, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 15 August 2002, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD duly executed.

7.  Accordingly, he was discharged from the Army on 4 February 2003.  The 
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation     635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial, other.  This form further shows his character of service as bad conduct and that he completed 5 years, 3 months, and 6 days of creditable military service with lost time from 4 December 2001 to 22 January 2002.  

8.  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.





9.  Army Regulation 635-200 governs the separation of enlisted personnel.  

	a.  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.

	b.  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.  

	c.  Paragraph 3-10 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial of multiple offenses to include the use of illegal drugs.  The court sentenced him to a forfeiture of pay, confinement, reduction to the lowest enlisted grade, and a BCD.  His trial by a general court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  

2.  Any redress by the ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of a general discharge 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)                                         AR20140009879



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ABCMR Record of Proceedings (cont)                                         AR20140009879



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