BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150001485 


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) to a general discharge (GD) or honorable discharge (HD). 

2.  The applicant states his record is unjust because of the abuse he received while in the Army.  

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge From Active Duty)
* Letter from Seafield Medford dated 20 December 2012
* character references
* Branford Hall Career Institute transcripts
* Branford Hall Career Institute President’s Club Certificate
* Branford Hall Career Institute Certificate
* Mainstream Engineering Corporation Certifications
* Certificate of Completion from the Seafield Services Outpatient Treatment
* Motion for Article 13 Credit dated 10 December 2003

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. On 11 September 2001, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 13B (Cannon Crewmember).

3.  On 18 December 2003, he was convicted by a general court-martial of:

* two specifications of failure to go to his appointed place of duty 
* one specification of absent without leave (AWOL)
* two specifications of failure to obey a lawful order and assaulting a superior noncommissioned officer (NCO)
* one specification of failure to obey a lawful regulation by wrongfully possessing drug paraphernalia
* eight specifications of wrongfully using amphetamines, cocaine and methamphetamines, and wrongful distribution of methamphetamines

4.  His sentence consisted of forfeiture of all pay and allowances, confinement for 7 months, and a BCD.  He was credited with 116 days of confinement against the sentence of confinement.

5.  General Court-Martial (GCM) Order Number 13, issued by Headquarters, 25th Infantry Division, Schofield Barracks, HI, dated 20 September 2004, shows that the sentence was approved and, except for the part of the sentence extending to the BCD, will be executed.  In addition, the applicant was credited with 116 days of confinement against his sentence to confinement.  GCM Order Number 75, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, dated 16 February 2006, shows the sentence was affirmed and the BCD was ordered to be executed.

6.  Accordingly, he was discharged from the Army on 7 July 2006.  The 
DD Form 214 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 4 years, 5 months, and 10 days of creditable military service. 
7.  The applicant has submitted documentation from his defense counsel at the time of his GCM in which he requested appropriate relief for unlawful pretrial punishment in the amount of 104 days of approved sentence credit.  The basis of the illegal pretrial punishment is detailed in twelve instances in which the applicant claims he was abused by his senior NCO.  

8.  The applicant has also provided documentation and references to show his post service accomplishments, character, and integrity.   

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 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 BCD 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 GCM of multiple offenses to include the use of illegal drugs.  The court sentenced him to a forfeiture of pay, confinement, and a BCD.  His trial by a GCM 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 GD or HD 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)                                         AR20150001485



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