IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008528 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008528 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008528 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. 2. The applicant states his discharge was unjust because of his age and level of maturity. He was misguided by those who portrayed themselves as friends. He found it easy to believe those individuals were his friends because they were fellow Soldiers. He was young and dumb but has paid for his mistakes. 3. The applicant provides a self-authored letter. 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 28 October 1994, the applicant enlisted in the U.S. Army Reserve under the Delayed Entry Program (DEP). On 8 February 1995, following his discharge from the DEP and at the age of 20, he enlisted in the Regular Army. 3. On 28 August 1998, he was convicted by a special court-martial of three specifications of wrongful use of marijuana between 21 December 1997 and 8 June 1998. His sentence consisted of a bad conduct discharge, a forfeiture of $617 pay for 3 months, confinement for 3 months, and reduction to the rank/ grade of private/E-1. 4. Special Court-Martial Order Number 33, issued by Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky on 12 May 2000, shows the sentence was approved and affirmed. 5. His record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 25 August 2000, in the rank/grade of private/E-1, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial, other. His DD Form 214 further shows he was issued a bad conduct discharge. 6. The applicant provides a self-authored letter detailing his personal accomplishments and character. REFERENCES: 1. 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 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. 2. 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: 1. The applicant's request for an upgrade of his bad conduct discharge was carefully considered. The evidence of record shows he was convicted by a special court-martial of multiple specifications of illegal drug use in violation of the Uniform Code of Military Justice. 2. The applicant contends his discharge should be upgraded because he was young and foolish at the time of his service. Records show that he was almost 24 years of age at the time of his offenses. However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their periods of military service. 3. The applicant was convicted by a special court martial. The court sentenced him to a forfeiture of pay, confinement, and a bad conduct discharge. His trial by special 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 characterized the misconduct for which the applicant was convicted. 4. 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 general discharge or honorable discharge is not warranted in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008528 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008528 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2