BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160004097 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 BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160004097 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. BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160004097 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 his bad conduct discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states: a. He requests a discharge upgrade to better his family's situation. He has an eight year old son and a 17 year old daughter. He needs a better quality of life, a better job, and the ability to obtain the Department of Veterans Affairs (VA) benefits that are available to veterans. b. Since the time of his offenses and discharge, he has shown stand-up qualities as a citizen of the United States. The statute of limitations to hold him accountable for such offenses has passed, so he asks that he be seen as an other than honorable veteran so he may pursue some of the benefits available through the VA, such as loan entitlements and healthcare. 3. The applicant provides: * Orders 151-0198, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY on 30 May 2008 * a partially redacted copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 6 June 2008 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 27 July 2005. He completed his initial entry training and was awarded military occupational specialty 68E (Dental Specialist). 3. General Court-Martial Order Number 7, issued by Headquarters, U.S. Army Alaska, on 29 March 2007, shows the applicant was convicted by a general court-martial on 15 November 2006 of violations of Articles 112a of the Uniform Code of Military Justice (UCMJ). a. The applicant was convicted of six specifications of violating Article 112a of the UCMJ as follows: (1) Wrongfully using cocaine, at or near Fort Richardson, Alaska, on or about 18 June 2006; (2) Wrongfully using marijuana, at or near Fort Richardson, Alaska, on or about 18 June 2006; (3) Wrongfully using cocaine, at or near Fort Richardson, Alaska, between on or about 8 July 2006 and on or about 10 July 2006; (4) Wrongfully using cocaine, at or near Fort Richardson, Alaska, between on or about 22 July 2006 and on or about 24 July 2006; (5) Wrongfully using cocaine, at or near Fort Richardson, Alaska, between on or about 3 August 2006 and on or about 5 August 2006; (6) Wrongfully distribute cocaine, at or near Fort Richardson, Alaska and at or near Anchorage, Alaska, on divers occasions between on or about 1 April 2006 and on or about 31 July 2006; b. The applicant was sentenced to be reduced to the lowest enlisted grade, to be confined for 22 months, and to be discharged from the service with a bad conduct discharge. 4. The convening authority approved the sentence on 29 March 2007 and, except for that part of the sentence extending to the bad conduct discharge, ordered it executed. 5. The record of trial was forwarded to the U.S. Army Court of Criminal Appeals for review. The U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence on 20 June 2007. 6. The U.S. Court of Appeals for the Armed Forces denied his petition for review. 7. General Court-Martial Order Number 266, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, on 12 December 2007, shows that after completion of all required post-trial and appellate reviews, the sentence was finally affirmed. Consequently, the convening authority ordered the bad conduct discharge duly executed. 8. The applicant was discharged on 6 June 2008. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial. The DD Form 214 further confirms he was issued a bad conduct discharge. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel as a result of court-martial. a. An under honorable conditions (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. b. An enlisted person will receive a bad conduct discharge pursuant only to an approved sentence of a court-martial imposing a bad conduct discharge. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. DISCUSSION: 1. The evidence of record shows the applicant was given a bad conduct discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offense charged at the time. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004097 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2