IN THE CASE OF: BOARD DATE: 22 March 2012 DOCKET NUMBER: AR20110018639 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, a discharge upgrade. 2. The applicant states he was an alcoholic and a drug addict and he was not afforded drug and alcohol counseling and treatment. He was under great stress in the Army and resorted to drugs and alcohol to cope. He loves his country and served faithfully 9 1/2 years. 3. The applicant provides a letter from the Salvation Army, dated 5 January 2011. 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 served in the Regular Army from 22 August 1984 until his Bad Conduct Discharge (BCD) on 4 June 1993. 3. Before a Special Court-Martial at Fort Leonard Wood, MO, on 12 February 1986, the applicant was tried for violation of Article 112a, Uniform Code of Military Justice (UCMJ) for on or about 26 October 1985: * wrongfully possessing 1.56 grams of marijuana with intent to distribute (dismissed by the military judge on defense motion as multipicitious) * wrongfully distributing 1.56 grams of marijuana (not guilty) * wrongfully possessing 1.56 grams of marijuana (guilty) 4. He was sentenced to a BCD; however, the execution of the sentence was suspended for 6 months at which time, unless sooner vacated, it would be remitted without further action. 5. Before a General Court-Martial at Fort Eustis, VA, on 4 September 1992, the applicant was tried for a violation of the UCMJ: a. Charge I, Article 86 Plea: Guilty. Finding: Guilty. * On or about 6 July 1992, without authority, failed to go at the time prescribed to his appointed place of duty b. Charge II, Article 92 Plea: Guilty. Finding: Guilty. * On or about 24 April 1992, violating a lawful general regulation, to wit: Fort Eustis Regulation 27-1, by wrongfully borrowing $20.00 from a private. Plea: Guilty. Finding: Guilty * On or about 1 May 1992, violating a lawful general regulation, to wit: Fort Eustis Regulation 27-1, by wrongfully borrowing $100.00 from a private. Plea: Guilty. Finding: Guilty * On or about 13 May 1992, violating a lawful general regulation, to wit: Fort Eustis regulation 27-1, by wrongfully borrowing $50.00 from a private. Plea: Guilty. Finding: Guilty * On or between 1 June and 30 June 1992, violating a lawful general regulation, to wit: Fort Eustis Regulation 27-1, by wrongfully borrowing $300.00 from a specialist. Plea: Guilty. Finding: Guilty * On or about 19 May 1992, violating a lawful general regulation, to wit: Fort Eustis Regulation 27-1, by wrongfully borrowing $100.00 from a private. Plea: Guilty. Finding: Guilty c. Charge III, Article 112a Plea: Guilty. Finding: Guilty. * On or between 7 May and 22 May 1992, wrongfully using cocaine Plea: Guilty. Finding: Guilty * On or between 23 May and 1 June 1992, wrongfully using cocaine Plea: Guilty. Finding: Guilty d. Charge IV, Article 121 Plea: Guilty. Finding: Guilty. * On or between 28 May and 28 June 1992, larceny of a television, video cassette recorder, and boom box, of a value of over $100.00, the property of a rental company [corrected by U.S. Army Court of Military Review to "On or between 12 June and 12 July 1992]. Plea: Guilty Finding: Guilty * On or between 28 May and 28 June 1992 larceny of a television of a value of over $100.00, the property of a rental company. Plea: Guilty Finding: Guilty e. Charge V, Article 134 Plea: Guilty. Finding: Guilty. * On or about 20 March 1992, obtain services under false pretenses Plea: Not Guilty. Finding: Dismissed * On or about 24 March 1992, obtain services under false pretenses Plea: Not Guilty. Finding: Dismissed * On or about 6 May 1992, make and utter a worthless check to the Fort Eustis Commissary, to wit: check number 0095, in the amount of $35.05. Plea: Guilty. Finding: Guilty * On or about 7 May 1992, make and utter a worthless check to the Fort Eustis Commissary, to wit: check number 0097, in the amount of $26.41. Plea: Guilty. Finding: Guilty * On or about 7 May 1992, make and utter a worthless check to the Fort Eustis Commissary, to wit: check number 0099, in the amount of $32.82. Plea: Guilty. Finding: Guilty * On or about 6 May 1992, make and utter a worthless check to the Fort Eustis Commissary, to wit: check number 0100, in the amount of $29.36. Plea: Guilty. Finding: Guilty 6. He was sentenced to be reduced from sergeant to private, a forfeiture of $500.00 pay for 6 months, to be confined for 6 months, and the issuance of a BCD. The sentence was approved and, except for the BCD, ordered executed. The applicant was credited with 51 days of confinement against the sentence to confinement. 7. On 10 February 1993, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 8. The applicant's BCD was executed on 4 June 1993. 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 provides guidance on characterization of service and states, in pertinent part: a. Paragraph 3-7a states that an Honorable Discharge (HD) 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 states 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 HD. DISCUSSION AND CONCLUSIONS: 1. The applicant requests an upgrade of his BCD. Clearly, his military service does not rise to the level of a GD. He was convicted of marijuana possession in 1985 and cocaine use in 1992. It appears his abuse of drugs and alcohol began early in his period of service and there is no evidence that it was related to stress placed on him by the Army. 2. The Army has a well-established alcohol and drug abuse prevention and control program. The applicant could have self-referred at any time. He apparently chose not to do so. 3. Clemency in the form of a discharge upgrade is not appropriate in this case. The applicant has failed to provide sufficient evidence to merit an upgrade of his discharge as a matter of equity. 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) AR20110018639 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110018639 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1