BOARD DATE:	21 July 2015  

		DOCKET NUMBER:  AR20140019161 


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:

   a.  During the sentencing phase of his court-martial all the distribution charges were dropped because he was found not guilty.  He was found guilty only of destruction of Government property and failing a urine test.  Normally, that’s only a discharge from the service but he got 6 months in prison.  He received a BCD.  He did what he did, but it’s been almost 20 years and he begs forgiveness.
   
   b.  This has cost him job offers and makes him feel like a bad man and a bad role model for his kids.  He is a totally different person now.  He was a good Soldier before his drug addiction.  He has beaten his addiction.

3.  The applicant provides a self-authored statement in support of his request.

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 28 April 1992, completed training as an infantryman, and was ordered to duty in Hawaii.  There is no evidence that he was ever advanced beyond pay grade E-1.

3.  At a general court-martial he pled – 

* not guilty of conspiracy to distribute a controlled substance on or about 20 September 1993
* guilty by exceptions and substitutions of willful destruction of military property
* not guilty of wrongful distribution of cocaine on or about 15 and 31 July 1993
* not guilty of wrongful distribution of cocaine and marijuana on or about 20 September 1993
* guilty of wrongful use of marijuana between 8 January and 8 February 1994.

4.  He was found guilty as he pled.  On 24 May 1994, he was sentenced to forfeiture of all pay and allowance, confinement for 6 months, and a BCD.  Except for the BCD, the sentence was ordered executed. 

5.  The applicant served his confinement and departed on involuntary excess leave.

6.  On 4 January 1996, the U.S. Army Court of Criminal Appeals affirmed the findings and sentence.  On 20 November 1996, the BCD was ordered executed.

7.  In his self-authored statement, he asserts the following:

     a.  He was found not guilty of all distribution charges at his court- martial, but he was found guilty of destruction of Government property and illegal use of marijuana and awarded an under other than honorable conditions discharge (sic).  He was 20-21 years of age, had never been away from home, and on top of that he was his mother’s only child (she passed away on 1 July 2014).  He wasn’t used to being away from her and he worried about her constantly because of her health.  His discharge has followed him for almost 20 years.  He couldn’t get a decent job, he couldn’t give his mother a decent funeral because of lack of funds, and the discharge has scarred his image as a husband, father and person.  He was a model Soldier until his he became addicted to marijuana.  He loved physical training and the military and he still does.  He wishes he could still be a part of it, but he can’t and he understands why.  

     b.  He gave his all before his troubles and he's paid his dues in 20 years.  He doesn't want the discharge to affect his civilian life anymore by preventing him from providing for his family.  He doesn't want his wife and children to continue to pay for his mistakes.  He's learned his lesson and he's now a model citizen, husband, and father who wants to be able to live his life to the fullest.  He can’t do that with this dark cloud over him

     c.  He served 6 months in confinement at Ft Lewis for failing a urine test and breaking a $20 table after being called names no black man likes.  He promised his mom before she died that he would beg the Army for forgiveness and a second chance to have his life back.  

8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-11 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the affirmed sentence 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his BCD to an HD.

2.  His conviction and sentence by a general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given his BCD until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Criminal Appeals.

3.  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.  Any difficulties he may have experienced in civilian life as a result of his BCD are natural outcomes of the misconduct for which he was convicted.  Absent any mitigating factors, the type of discharge directed and the reasons therefore 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)                                         AR20140019161





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ABCMR Record of Proceedings (cont)                                         AR20140019161



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