RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060015130 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Kenneth Wright

Chairperson

Mr. Patrick McGann

Member

Ms. Karmin Jenkins

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, that clemency be granted in the form of a general discharge.  

2.  The applicant states, in effect, that he is in no way making light of the charges he was found guilty of or is he making excuses for his actions.  He states that this incident is one of the biggest disappointments he has ever brought upon himself, that it has been 19 years since this matter, and that he relives it all the time not to mention when filling out an application for employment.  He points out that he returned to school at the National Aviation Academy, that he will soon be a certified aviation maintenance professional, and that he has a perfect attendance and a 95 percent grade point average.  He also stated that a discharge upgrade would help him tremendously when he graduates and looks for a job.   

3.  The applicant provides six character reference letters and an excerpt from a document titled “Soldiers.”

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 8 March 1989.  The application submitted in this case is dated 1 October 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.  Having prior active service, the applicant enlisted as a sergeant on 25 June 1985 for a period of 5 years.  He served in military occupational specialty 67V (observation/scout helicopter repairer).  

4.  On 31 July 1987, in accordance with his pleas, the applicant was convicted by a general court-martial of using marijuana, methamphetamine, and cocaine; and distributing cocaine.  He was sentenced to be reduced to E-1, forfeiture of all pay and allowances, to be confined for 11 years, and to be discharged from the service with a bad conduct discharge.  On 22 September 1987, pursuant to a pre-trial agreement the convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement for 9 months, forfeiture of all pay and allowances, and reduction to E-1.

5.  On 23 February 1988, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  The dishonorable discharge was ordered to be executed on 28 February 1989.

7.  Accordingly, the applicant was discharged with a dishonorable discharge on 
8 March 1989 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 5 years, 9 months, and 6 days of total active service with 224 days of lost time due to confinement.   

8.  The applicant provided a 1987 character reference letter from a member of his chain of command.  He attests that prior to the applicant’s involvement with illegal drugs, he had always maintained the highest standards of conduct and duty performance.  He stated that the applicant was a talented and professional noncommissioned officer and that his addiction to illegal drugs was a shock to him personally and to the unit.  He also stated that he believed the applicant fully appreciated the seriousness of his actions and was ready to start a new career as a civilian. 

9.  The applicant provided four character reference letters from four instructors at the National Aviation Academy.  They attest that the applicant is one of the “Top” students in the school and his class, that he is quoted as an extremely hard working mechanic by his instructor and peers, that he manifests a professional comportment, and that he is respected by his classmates and instructors.  The applicant’s pastor attests that the applicant has been a member in good standing at the church for many years.
   
10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

11.  Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or to take clemency action.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the sole purpose of obtaining employment opportunities. 

2.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

3.  The applicant, an experienced Soldier trained as a helicopter mechanic, was discharged with a dishonorable discharge for using marijuana, methamphetamine, and cocaine; and distributing cocaine.  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, clemency in the form of an honorable discharge is not warranted in this case, nor was his service sufficiently satisfactory to warrant a general discharge.

4.  Records show the applicant should have discovered the alleged injustice now under consideration on 8 March 1989, the date of his separation from the Army; therefore, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 7 March 1992.  However, the applicant has provided evidence to support his request for a grant of clemency based on good post-service conduct.  In view of the submitted evidence and since good post service conduct could only accrue subsequent to discharge from the Army, it is in the interest of justice to waive failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

KW_____  __PM___  ___KJ___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.



___Kenneth Wright_____
          CHAIRPERSON




INDEX

CASE ID
AR20060015130
SUFFIX

RECON

DATE BOARDED
20070510
TYPE OF DISCHARGE
DD
DATE OF DISCHARGE
19890308
DISCHARGE AUTHORITY
AR 635-200 Chapter 3
DISCHARGE REASON
As a result of a court-martial 
BOARD DECISION
NC
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.