IN THE CASE OF:	  

	BOARD DATE:	  24 June 2008

	DOCKET NUMBER:  AR20080001777 


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, that his dishonorable discharge be upgraded to honorable.

2.  The applicant states, in effect, that he has been clean for 22 years and currently teaches cadets right from wrong.

3.  The applicant provides no supporting documentation.

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.  On 16 February 1982, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty (MOS) 31C (Single Channel Radio Operator).
3.  On 18 May 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongful solicitation and selling the use of an unauthorized credit card, wrongful possession and use of marijuana.  The punishment included a forfeiture of $250.00 pay per month for 2 months and 45 days of restriction and extra duty.

4.  On 6 December 1982, the applicant was assigned for duty as a radio teletype operator with the 42nd Field Artillery Brigade in the Federal Republic of Germany.  He returned to the United States on 27 July 1984 for duty at Fort Carson, Colorado.

5.  On 20 March1984, the applicant accepted NJP for wrongful possession and use of marijuana in the hashish form.  The punishment included reduction to pay grade E-2, a forfeiture of $300.00 pay per month for 2 months and 45 days of restriction and extra duty.

6.  On 20 September 1985, a charge was preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 112a (one specification) for wrongful distribution of approximately forty doses of lysergic acid diethylamide (LSD).

7.  On 4 December 1985, the applicant offered to plead guilty to the charge and specification, enter into a written stipulation of fact regarding the offense, and agreed to testify truthfully in the General Court-martial, provided the convening authority agreed to suspend for a period of 9 months from the date of the offer, any sentence that was in excess of 12 months confinement, total forfeitures, reduction to pay grade E-1, and a dishonorable discharge.

8.  On 10 December 1985, the convening authority elected not to accept the applicant's offer to plead guilty.

9.  On 12 December 1985, the convening authority accepted an amended plea offer with the same terms except the amended offer permitted the convening authority to approve up to 15 months confinement.

10.  On 17 December 1985, before a Military Judge at a General Court-Martial, the applicant pled guilty to the charge and specification.  

11.  The military judge accepted the applicant's plea and found him guilty of the charge and specification.  The military Judge sentenced him to a reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 18 months, and a dishonorable discharge.

12.  On 30 January 1986, the Staff Judge Advocate, in a written review for the convening authority, summarized the evidence and trial discussion.  The Staff Judge Advocate recommended approval of the sentence. 

13.  On 11 February 1986, the convening authority approved the sentence providing for reduction to pay grade of E-1, forfeiture of all pay and allowances, and confinement for 15 months, and except for that part extending to a dishonorable discharge, ordered the sentence executed. 

14.  On 13 May 1986, the United States Army Court of Military Review considered the entire record, including the applicant's issue of jurisdiction, and held that the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, it affirmed the finding of guilty and the sentence as approved.

15.  On 26 September 1996, the United States Court of Military Appeals denied the applicant's petition for review.

16.  General Court-Martial Order Number 796, United States Army Correctional Activity, Fort Riley, Kansas, dated 17 November 1986, provided that the sentence to a dishonorable discharge, confinement for 18 months (confinement in excess of15 months was suspended for nine months from the date of the convening authority's action), forfeiture of all pay and allowances, and reduction to pay grade E-1, adjudged on 17 December 1985, had been affirmed.  Article 71(c), UCMJ, having been complied with, the dishonorable discharge was ordered executed.

17.  The applicant's DD Form 214 shows that he was discharged on 16 December 1986 under the provisions of Army Regulation 635-200, Chapter 3, section IV and received a dishonorable characterization of service.  

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  The applicant’s reported good post-service conduct is noted.  However, it does not sufficiently mitigate his acts of indiscipline during his military service.


3.  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 the aforementioned requirement.

4.  In view of the above, the applicant's request should be denied.  

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)                                         AR20080001777



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ABCMR Record of Proceedings (cont)                                         AR20080001777



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