IN THE CASE OF:	  

		BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140014724 


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) to an honorable discharge.

2.  The applicant states he was mistakenly sent an erroneous DD Form 214 (Certificate of Release or Discharge from Active Duty).  He also contends that the unit commander was prejudiced and removed all black noncommissioned officers (NCO) from positions of authority to the point that no black NCO rated any white Soldier.  The unit suffered from racism and lack of leadership.  The unit chain of command; the Judge Advocate General (JAG) officers, except for his defense attorney Major Veronica H____ who did a great job; and the Criminal Investigation Division (CID) were all incompetent.  For example, the CID didn't even ask why they were using drugs.  The applicant states that he will attend a personal appearance hearing and will call witnesses.

3.  The applicant provides copies of – 

* his DD Form 214
* discharge orders effective 1 August 2007
* his personal assessment of his case
* extract of the record of trial
* a  letter from Central Union Mission, Washington, DC, dated 11 February 2015
* a 21 December 2014 letter from Sergeant First Class (SFC) W____ 



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, a U.S. Army Reserve (USAR) Soldier, was called to active duty with his unit on 14 January 2005 for mobilization to Afghanistan.  

3.  On 28 August 2005, he pled guilty before a general court-martial to possessing, using, and distributing hashish and to conduct prejudicial to good order and discipline by contaminating his urine sample.  He was found guilty and sentenced to a BCD and confinement for 24 months.  The convening authority approved the findings but approved only 12 months of confinement.  

4.  The U.S. Army Court of Military Review affirmed the findings and the approved sentence.  General Court-Martial Order Number 154, U.S. Army Field Artillery Center and Fort Sill, Oklahoma, dated 21 June 2007, announced the sentence had been affirmed.  Article 71(c) having been complied with and the sentence to confinement having been completed, the BCD was ordered executed.  He was discharged on 17 August 2007.

5.  In support of this request the applicant submitted an extract from the record of trial showing that the applicant's platoon sergeant testified that – 

* the applicant had not gotten along with his other NCOs because they thought he acted "black" and the applicant had told him that he acted the way he did because his step-father was black, he had lived in predominantly black neighborhoods, and he had gone to predominantly black schools  
* the applicant had related to the sergeant that the black Soldiers didn't like him because he acted black and the white Soldiers didn't like him for the same reason
* the applicant was an excellent worker who did his job better than any other Soldier had done the same job
6.  The applicant also submitted the part of the record of trial containing his own unsworn statement to the court.  Under the prompting of his legal counsel the applicant – 

* described his family and community background and related how his step-father had taught them how to survive in the "ghetto" and how to get out of the ghetto
* he joined the USAR because his family was having a hard time economically and he thought this would help get them ahead
* his USAR position paid better than his previous part-time second job
* he and Sergeant L____ didn't have much of a relationship because, "People just looked at me like I was trying to be something I wasn't…"
* he wanted to stay in the military
* he pled guilty because those offenses were what he actually did

7.  His defense counsel offered in her closing statement on sentencing that – 

* the applicant's problems originated because the applicant was not accepted by others for who he was
* the second platoon was a tight knit organization; they had bonded together and the applicant wanted to be a part of that tight group
* the problem was they had bonded around things that were not necessarily good (she implied drug use) 
* only 10 Soldiers were left in the unit when they (apparently the chain of command) decided to get rid of the drug problem
* "We wish he would have had leadership…NCOs around who would have smelled hashish…and said…You got to stop…But that apparently was lacking"
* the applicant had waived an Article 32 hearing to save the unit an additional burden
* he was catheterized and urine was involuntarily taken because he had put a pebble in his urine sample
* this is not a case that calls for significant confinement
* the defense asked that the applicant not be discharged

8.  The applicant submitted a letter from SFC W____ who related that the company commander was a racist who relieved every non-white NCO from leadership positions and that, in his opinion, the applicant and his cohorts got into drug problems because they had no one to stick up for them and they felt isolated. 

9.  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.

10.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Trial by 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 characterizes the misconduct for which the applicant was convicted.

2.  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 the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

3.  The applicant's contentions are not sufficiently mitigating to warrant relief.  His current blaming of the chain of command, JAG officers, and CID for his behavior is clear evidence that he has not really accepted responsibility for his own decisions.  As a result, clemency is not appropriate even if it were otherwise justified.

4.  The applicant is not entitled to a personal appearance hearing nor has he provided any indication that a hearing would provide evidence that would change the outcome of his case.

5.  There is no basis for granting the 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)                                         AR20140014724





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ABCMR Record of Proceedings (cont)                                         AR20140014724



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