IN THE CASE OF:
BOARD DATE: 16 October 2008
DOCKET NUMBER: AR20080012151
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 that his dishonorable discharge (DD) be upgraded.
2. The applicant states he has been out of prison for 10 years and has had no further transgressions. He states that he wants to "put it behind me once and for all." He wants the discharge upgraded in order to "have my record expunged."
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant entered active duty on 4 September 1991, completed training, and was advanced to pay grade E-4.
3. Prior to his court-martial, the record shows no indication of any nonjudicial punishment or negative counseling.
4. He was awarded the Army Achievement Medal for the period 20 through 30 September 1992 and participated in relief efforts during Operation Hurricane Iniki, for which he received the Humanitarian Service Medal.
5. The applicant was charged under Article 112a, Uniform Code of Military Justice (UCMJ), with four counts of distribution of lysergic acid diethylamide (LSD), 1 count of possession of LSD, and under Article 134 of wrongfully and falsely altering his military identification card.
6. The applicant entered a pretrial agreement to limit punishment to not more than 9 years confinement, reduction to E-1, total forfeiture of all pay and allowances, and a DD.
7. At the general court-martial the military judge dismissed the charge of possession of LSD but accepted the applicant's plea of guilty to all remaining charges. A sentence of reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 15 years, and to receive a DD was adjudged on 21 October 1994.
8. Headquarters, 25th Infantry Division (Light) (Rear), Schofield Barracks, Hawaii, Court-Martial Orders Number 2, dated 2 February 1995, show that the convening authority approved the findings and sentence of the court-martial, except that he directed that the applicant be confined for only 9 years, and directed that sentence except for the DD be executed.
9. On 30 November 1994, the applicant was assigned to the United States Disciplinary Barracks, U. S. Army Combined Arms Center and Fort Leavenworth, Kansas.
10. On 19 May 1995, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.
11. United States Disciplinary Barracks General Court-Martial Order Number 165, dated 6 November 1995, noted the affirmation of Headquarters, 25th Infantry Division Court-Martial Orders Number 2, dated 2 February 1995, and the compliance with Article 71(c), UCMJ, and directed that the DD be executed.
12. On 22 December 1995, while in confinement, the applicant was dishonorably discharged. He had 3 years, 1 month, and 17 days of creditable service.
13. The statutory authority under which this Board was established (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction. The ABCMR may, however, grant clemency on equitable grounds.
14. Army Regulation 15-185 (Army Board for Correction of Military Records) states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases on the evidence of record and is not an investigative body.
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 discharge appropriately characterizes the misconduct for which the applicant was convicted. There is no basis in equity to support clemency as to any aspect of the sentence.
2. 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.
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.
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