IN THE CASE OF:	   

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140015759 


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, in effect, clemency and an upgrade of his bad conduct discharge (BCD).

2.  The applicant states:

* he was young and not so smart at the time of the incident
* he has not had any further involvement with the law since the incident
* he has become a model and productive citizen

3.  The applicant provides a self-authored statement and four character references.

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 was born on 8 March 1964 and he enlisted in the Regular Army on 4 August 1982 at the age of 18.  He served in Korea from 7 August 1984 to 13 June 1985.

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on two separate occasions for failing to go at the time prescribed to his appointed place of duty on 17 February and 1 and 8 July 1987.

4.  On 4 November 1987, he was convicted by a special court-martial of wrongfully distributing approximately .52 grams of cocaine on 21 April 1987.

5.  He was sentenced to a BCD, confinement for 3 months, a forfeiture of $425 pay for 3 months, and reduction to the lowest enlisted grade.  

6.  On 10 December 1987, the sentence was approved and, except for that portion extending to a BCD, was executed.

7.  On an unknown date, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

8.  On 30 June 1988, the BCD was ordered executed.  He was discharged on 17 October 1988 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, by reason of court-martial – other, with the issuance of a BCD.  He completed 5 years, 11 months, and 27 days of creditable active service with lost time from 4 November 1987 to 20 January 1988.

9.  He provided a self-authored statement in which he stated:

	a.  he befriended a young lady one weekend in 1986 (sic) who asked him if he knew where she could get some cocaine.  Later, the young lady and a white guy picked him up at the barracks.  They all went to a friend's house off base in Seaside, CA.

	b.  he departed his friend's house and returned with $20 worth of cocaine in which he put in the young lady's hand.  He never saw the young lady again, but a couple of months after the incident he was picked up and charged with cocaine distribution, court-martialed, sentenced to 90 days confinement, and a BCD.  He learned that he had been set up.  

	c.  he is requesting leniency in this case because he was young and let his peers think he was the big man on campus.  He admitted that he was not proud of what he had done in the past.  He has changed and proven himself by staying out of trouble.  

	d.  this incident occurred over 20 years ago and he has always been employed.

	e.  he has been married for 12 years and has raised five children who look up to him and he has made them proud to call him "Dad."

	f.  he has been employed with the railroad for the last 4-1/2 years and he hopes this is considered when determining the outcome of his fate.

	g.  he had an excellent service record with the military as an E-4 up to that point in 1986 (sic).  He would now like to apply for a Department of Veterans Affairs loan and get his wife and family a house that they so deserve.

10.  He provided the following character references from his wife, mother, and friends:

	a.  his wife states she has been married to the applicant for 12 years.  She described him as a loving husband and a kind and generous man with a big heart who is always willing to help out when and where he can.  She states the applicant made a mistake 28 years ago that cost him his career and hindered him from buying a house.  She further describes the applicant as a person of good moral character who has a great deal of integrity and a strong work ethic. She states the applicant's service record was excellent until that point in 1986.  

	b.  his mother describes the applicant as being a kind and generous soul who makes anyone proud to call him son, friend, family or whatever it takes to be a part of his life.  As a child, the applicant always carried himself in a way that mirrored her and he was a responsible teenager.  She could always depend on the applicant to do what was right and he was an incredible gifted student that was very talented.  The applicant is a great person, husband, and father and she doesn't think he could have made her any more proud as his mother.  

	c.  his friends describe him as a very good friend and an intelligent, dedicated, responsible family man.  He is also described as a very respectful and courteous person, a great husband, and an excellent father.  




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

   a.  Paragraph 3-10 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

	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.

12.  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 he was young and not so smart at the time of the incident.  Records show the applicant was 23 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  

2.  The applicant’s contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for granting clemency or upgrading a discharge.

3.  The applicant's service record shows he received non-judicial punishment on two occasions and was convicted by a special court-martial of wrongfully distributing approximately .52 grams of cocaine on 21 April 1987.

4.  The applicant's trial by court-martial was warranted by the gravity of the offense charged and 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.

5.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for clemency or for an upgrade of his BCD.  

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)                                         AR20140015759





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ABCMR Record of Proceedings (cont)                                         AR20140015759



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