IN THE CASE OF:
BOARD DATE: 11 December 2008
DOCKET NUMBER: AR20080015036
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 be upgraded to honorable.
2. The applicant states that he cannot join the Army and fight for his country.
3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).
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 enlisted in the Regular Army on 15 July 1980. He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman). He was honorably discharged on 2 April 1984 and immediately reenlisted on 3 April 1984.
3. On 30 September 1985, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for operating a vehicle while drunk and for resisting apprehension.
4. On 12 August 1987, the applicant accepted NJP under Article 15, UCMJ for wrongfully using cocaine on or about 29 January 1987.
5. On 17 December 1987, the applicant was convicted, in accordance with his pleas, by a general court-martial of striking a superior commissioned officer, of wrongfully using cocaine between 11 July and 11 August 1987, of unlawfully striking a superior noncommissioned officer, and of wrongfully distributing about one gram of cocaine on or about 14 July 1987. His approved sentence was to be discharged with a dishonorable discharge, to be confined for 32 months, and to forfeit all pay and allowances.
6. On 21 June 1988, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence.
7. On 19 December 1988, the U. S. Court of Military Appeals denied the applicant's request for grant of review.
8. On 24 February 1989, the applicant was discharged, with a dishonorable discharge, pursuant to his sentence by court-martial. He had completed a total of 7 years, 5 months, and 2 days of creditable active service and had 436 days of lost time (confinement).
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the members service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.
10. 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 Soldiers separation specifically allows such characterization.
11. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U. S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.
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.
2. In view of the foregoing, there is no basis for granting the applicants request.
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.
_______ XXX_ _______ ___
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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