BOARD DATE: 29 July 2010 DOCKET NUMBER: AR20100000145 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. 2. The applicant states: * he completed two enlistments with honorable discharges and was allowed to reenlist for a third enlistment which lasted more than 5 years * he committed one indiscretion at the very end of this otherwise honorable service * he was told by legal counsel to take the bad conduct discharge and not fight the court-martial because he would be able to change the character of his discharge after he got out and it would not affect any future benefits * he is now trying to get compensation for service-related problems which developed during his honorable service * 8 years of honorable service should be considered beyond one mistake which he has been punished for * he would like his foreign service considered * he was fearful and upset and did what he was told to do by someone of authority * he feels he should be able to be considered for Department of Veterans Affairs benefits because of his years of honorable service * the Department of Veterans Affairs said he had 189 days of being absent without leave (AWOL) * he was never AWOL 3. The applicant provides: * four training progress notes * two Certificates of Achievement * DD Form 214 (Report of Separation from Active Duty) for the period ending 23 November 1978 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 September 1988 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 24 November 1975 for a period of 3 years. He served as a terminal operations coordinator in Okinawa from 9 January 1977 to 27 June 1977. He was honorably released from active duty on 23 November 1978. He again enlisted on 27 August 1980 for a period of 3 years. He served as an air defense artillery Chaparral missile crewmember in Korea from 29 October 1980 to 28 October 1981. He arrived in Germany on 28 November 1981. On 29 June 1983, he was honorably discharged for immediate reenlistment. He reenlisted on 30 June 1983 for a period of 4 years. He departed Germany on 17 November 1984. He attained the rank of sergeant on 7 July 1985. 3. On 27 March 1987, nonjudicial punishment was imposed against the applicant for using cocaine. His punishment consisted of a reduction to E-4, a forfeiture of pay, restriction, and extra duty. 4. On 2 June 1987, nonjudicial punishment was imposed against the applicant for using cocaine. His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty. 5. On 22 September 1987, the applicant was convicted by a general court-martial of two specifications of distributing cocaine. He was sentenced to be reduced to pay grade E-1, to be confined for 7 months, to forfeit all pay and allowances, and to be discharged from the service with a bad conduct discharge. On 20 October 1987, the convening authority approved the sentence. 6. On 2 February 1988, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 7. On 7 September 1988, the convening authority ordered the bad conduct discharge to be executed. 8. Accordingly, the applicant was discharged with a bad conduct discharge on 19 September 1988 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial. He had served a total of 10 years, 6 months, and 28 days of creditable active service with 175 days of lost time due to confinement. 9. There is no evidence of record which shows the applicant was AWOL. 10. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 3 states 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. 11. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 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 evidence of record does not support the applicant's contention he committed one indiscretion at the very end of his otherwise honorable service. The evidence of record shows he received nonjudicial punishment for using cocaine prior to his general court-martial conviction for distributing cocaine. 2. The ABCMR does not correct records solely for the purpose of making the applicant eligible for veterans' or medical benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 3. The evidence of record supports the applicant's contention he was never AWOL. There is no evidence of record which shows the applicant was AWOL. He had 175 days of lost time due to confinement. 4. Trial by court-martial was warranted by the gravity of the offenses charged. The 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. 5. The applicant's record of service included two nonjudicial punishments for using cocaine, one general court-martial conviction for distributing cocaine, and 175 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgraded discharge. 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) AR20100000145 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100000145 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1