RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 April 2007
	DOCKET NUMBER:  AR20060013066 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Scott W. Faught

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his dishonorable discharge (DD).   

2.  The applicant states that he would like to apply for a government job.
 
3.  The applicant provides no additional documentary evidence in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 12 June 1984, the date of his discharge.  The application submitted in this case was received on 15 September 2006.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that after completing 3 years of prior active military service, he reenlisted and began the period of enlistment under review on 3 December 1980.  He was awarded military occupational specialty (MOS) 76P (Stock Clerk Specialist) on 12 December 1980, and the highest rank he attained while serving on active duty was specialist/pay grade E-4.  

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows 
that during his active duty tenure, he earned the Army Service Ribbon, Army Good Conduct Medal, Drivers Badge, and Expert marksmanship Qualification Badge with Rifle Bar.  


5.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  A Record of Court-Martial Conviction 
(DA Form 2-2) on file confirms that on 2 May 1986, a General Court-Martial (GCM) convicted the applicant of wrongfully introducing marijuana in the hashish form onto a military base on 8 occasions and wrongfully selling marijuana in the hashish form on 4 separate occasions. His sentence for these offenses was a reduction to private (PV1)/E-1, forfeiture of all pay and allowances , 5 years confinement at hard labor and a dishonorable discharge

6.  The court-martial convening authority approved only so much of the sentence extending to forfeiture of all pay and allowances, reduction to E-1, confinement for 3 years and dishonorable discharge as adjudged in Headquarters, 1st Infantry Division, GCM Order Number 29, dated 28 June 1983.

7.  On 8 February 1984, the United States Army Court of Military Review affirmed the findings of guilty and the sentence pertaining to the applicant after having determined that they were correct in law and fact.

8.  On 22 May 1984, GCM Order Number 402, issued by Headquarters, United States Disciplinary Barracks, United States Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, directed, Article 71c of the UCMJ having been complied with, that the DD portion of the sentence be duly executed. 12 June 1984, the applicant was discharged accordingly.  

9.  The DD Form 214 issued to the applicant on the date of his separation, 
12 June 1984, shows that he was separated with a DD under the provisions of paragraph 3-10, Army Regulation 635-200, by reason of court-martial.  It also shows that at the time of his separation, he had completed a total of 5 years, 
4 months, and 29 days of creditable active military service, and had accrued 
408 days of time lost due to confinement.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies for assigning a character/description of service in connection with separation.  Paragraph 3-10 contains guidance on DDs.  It states that a Soldier will be given a DD pursuant only to an approved sentence of a GCM.  The appellate review must be completed and the affirmed sentence ordered duly executed.  





DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded so that he may obtain government employment was carefully considered.  However, his record confirms that the GCM conviction that resulted in his receiving a DD was for serious drug related offenses.  As a result, the DD he ultimately received was appropriate, given his serious misconduct.  

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and his rights were protected throughout the court-martial process.  

3.  By law, any redress by this Board of the finality of a court-martial conviction
is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on his drug related disciplinary history and the seriousness of the offenses for which he was convicted, clemency would be inappropriate in this case.  

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment or employment benefits.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 June 1984, the date of his discharge.  Therefore, the time for him to file a request for correction of any error or injustice expired on 11 June 1987.  He failed to file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LDS____  _JCR____  _SWF___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




__Linda D. Simmons____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.