RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	3 April 2008  
	DOCKET NUMBER:  AR20070014202 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jeffrey Redmann

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 that his dishonorable discharge (DD) be upgraded to a general discharge.

2.  The applicant states, in effect, that he did not believe that the punishment fit the crime.  If this were to happen today, he does not believe that the punishment would be as severe or that he would be given a DD.    

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), three character reference statements written by former service members at the time of his court-martial and a certificate of completion in support of his request, dated 1985.

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's record shows he enlisted in the Regular Army on 23 March 1983.  He successfully completed basic combat training and advanced individual training at Fort Benning, Georgia.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman.

3.  At a general court-martial on 2 May 1985, the applicant entered mixed pleas to numerous offenses under the UCMJ.  He was found guilty of the wrongful distribution of cocaine on 4 December 1984; of the wrongful distribution of marijuana on 18 December 1984; of the wrongful distribution of marijuana on 20 December 1984; of the wrongful use of marijuana on 11 January 1985; of the wrongful possession of marijuana and cocaine on 11 January 1985; and of the wrongful distribution of marijuana on 11 January 1985.  His sentence consisted of confinement for 5 years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a DD.  Only so much of the sentence as provided for reduction to pay grade E-1, a forfeiture of $300.00 pay per month for 42 months, confinement for 42 months, and a DD was approved by the general court-martial convening authority.  

4.  On 31 December 1985, the United States Army Court of Military Review affirmed the findings and sentence.

5.  On 4 June 1986, the US Court of Military Appeals for the Armed Forces denied the applicant's petition for review.  

6.  On 19 June 1986, the general court-martial convening authority directed that the DD be duly executed as the sentence had been timely affirmed. 

7.  On 25 July 1986, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a DD.  He had served 2 years, 1 month, and 9 days of creditable service and had 449 days of time lost due to confinement. 

8.  The applicant provided a copy of certificate of completion, in recognition of his participation and completion of the Drug Related Issues Program, dated 12 December 1985.

9.  The applicant provided three character reference letters from Soldiers written at the time of his court-martial that attested to and described his performance while he was serving on active duty and that he could be a productive Soldier with minimum confinement.  

10.  The applicant’s case is ineligible for review by the Army Discharge Review Board (ADRB) due to his conviction by a general court-martial.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-10 of that regulation provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been duly executed.





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

13.  The Manual for Courts-Martial (MCM) provides the maximum sentences that may be imposed if convicted at trial by court-martial.  It provides, in pertinent part, that the maximum sentence that may be imposed for a conviction by a court-martial, for a single violation of Article 112a, wrongful use, possession, etc., of control substances is a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 5 years.   

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was convicted by a general court-martial and was found guilty of wrongful distribution of cocaine and marijuana, of the wrongful use of marijuana, and of the wrongful possession of marijuana and cocaine.  He was discharged pursuant to the sentence of a general court-martial and was issued a DD after the sentence was affirmed.

2.  The general court-martial the applicant received on 2 May 1985 was warranted by the gravity of the offenses charged.  A dishonorable discharge is adjudged by a court-martial when it determines a Soldier should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment.  The applicant's offenses, when weighed with his overall disciplinary history, warranted this punishment.

3.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses.  He has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant states that he does not believe that the punishment fit the crime and if this were to happen today, he does not believe that the punishment would be as severe or that he would be given a dishonorable discharge.  

5.  It is noted that if the applicant was found guilty of the charged offenses today, and was convicted at a trial by court-martial, the maximum sentence that could be imposed for a single violation of Article 112a, would be the same as he received, according to the MCM.  

6.  The character reference letters and certificate of completion attest to and describe his performance while serving on active duty and that he could be a productive Soldier and show his participation and completion of a drug related issues program; however, this evidence is insufficient as a basis to upgrade his discharge, particularly in view of his offenses, and the fact that since his conviction and discharge and the date these statements were authored, 22 years have passed.  

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___cd___  __JR____  __LD____  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.




_____Carmen Duncan_________
          CHAIRPERSON




INDEX

CASE ID
AR20070014202
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2008
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19860725
DISCHARGE AUTHORITY
AR 635-200, chap 3-10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.

5.  It is noted that if the applicant was found guilty of the charged offenses today, and was convicted at a trial by court-martial, the maximum sentence that may be imposed for a single violation of Article 112a, would be a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor 
disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for 
misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

Paragraph 14-12c(2) provides for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  

The Manual for Courts-Martial provides the maximum sentences that may be imposed if convicted at trial by court-martial.  It provides, in pertinent part, that the maximum sentence that may be imposed for a conviction by a court-martial, for a single violation of Article 134, drugs, wrongful distribution of, or with intent to distribute, wrongful possession, manufacture, or introduce marijuana use, is a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 15 years.