IN THE CASE OF:	  

		BOARD DATE:	  8 January 2009

		DOCKET NUMBER:  AR20080015185 


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 (DD) be upgraded.   

2.  The applicant states, in effect, he has completely changed his life and has become a respected member of his community.  He states that although he was guilty of and has accepted responsibility for the crimes that led to his DD, the penalty was overly severe.  

3.  The applicant provides documents from his military personnel records jacket (DA Form 201) in support of his application.  

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 that he initially enlisted in the Regular Army (RA) for 3 years and entered active duty on 27 April 1977.  He was trained in and awarded military occupational specialty (MOS) 64C (Motor Transport Operator), and served for 3 years until being honorably released from active duty (REFRAD) on 26 April 1980, at the completion of his required active duty service.  The separation document (DD Form 214) he was issued at the time shows he held the rank of specialist four (SP4).  His record during this period documents no acts of valor, significant achievement, or service warranting special recognition. 

3.  On 3 March 1981, the applicant again enlisted in the RA for 3 years.  His record shows he was trained in and awarded MOS 76P (Materiel Control and Accounting Specialist).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows he was promoted to SP4 on 7 July 1980, and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private/E-1 (PV1) on 7 September 1983, and that this was the rank he held on the date of his discharge.  

5.  Item 9 (Awards, Decorations & Campaigns) of the applicant’s DA Form 2-1 shows he earned the Army Service Ribbon, Overseas Service Ribbon, and the Army Good Conduct Medal (1st award) during his active duty tenure.  His record documents no acts of valor, significant achievement, or service warranting special recognition during his last enlistment.  

6.  Headquarters, U.S. Army Element, Combined Field Army (ROK [Republic of Korea]/US) General Court-Martial (GCM) Order Number 14, dated 7 September 1983, shows that the applicant was found guilty, pursuant to his plea, for five specifications of violating Article 134 of the Uniform Code of Military Justice (UCMJ) as follows:  wrongfully distributing .72 gram of methamphetamine on or about 19 January 1983; wrongfully possessing .72 gram of methamphetamine with the intent to distribute on or about 19 January 1983; wrongfully distributing .23 gram of methamphetamine on or about 10 March 1983; wrongfully possessing .23 gram of methamphetamine with the intent to distribute on or about 10 March 1983; and wrongfully possessing .048 gram of methamphetamine on or about 10 March 1983.  On 4 August 1983, the military judge imposed a sentence of confinement at hard labor for 18 months, forfeiture of all pay and allowances, reduction to PV1, and a DD.

7.  Within the same orders the GCM convening authority approved only so much of the sentence imposed by the military judge that provided for a DD, confinement at hard labor for 12 months, forfeiture of all pay and allowances, and 
reduction to the lowest enlisted grade.  The GCM also directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

8.  On 13 February 1984, the United States Army Court of Military Review after determining the findings of guilty and the sentence imposed in the applicant’s case to be correct in law and fact, and determining on the basis of the entire record that they should be approved, affirmed the findings of guilty and sentence in the applicant’s case. 

9.  United States Army Correctional Activity, Fort Riley, Kansas, GCM Order Number 125, directed, Article 71(c) of the UCMJ having been complied with, that the DD portion of the applicant’s sentence be duly executed.  On 27 November 1984, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 2 years, 4 months, and 28 days of creditable active military service during the enlistment under review, and that he accrued 260 days of time lost due to confinement.  The DD Form 214 also shows that he was separated under the provisions of Army Regulation 635-200, chapter 3, by reason of as a result of court-martial.  

10.  The applicant provides documents from his 201 file that include certificates/letters of appreciation, commendations and training.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates, in pertinent part, that that a Soldier will be given a DD pursuant only to an approved sentence of a GCM, and that the appellate process must be completed and affirmed before the DD portion of the sentence is ordered duly executed. 

12.  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 Army Board for Correction of Military Records 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.  The applicant’s contention that his DD should be upgraded because the penalty was too severe and based on his good post-service conduct was carefully considered.  However, while his post-service conduct is noteworthy, it alone is not sufficiently mitigating to support granting the requested relief.  

2.  By law and regulation, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

3.  In this case, the evidence reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  His record documents no acts of valor, significant achievement, or service warranting special recognition, and his honorable service during his first 3 year enlistment was appropriately recognized by the DD Form 214 he was issued for that period of service.  

4.  The applicant’s good post-service conduct alone does not support an upgrade of his discharge.  Given the gravity of the offenses for which he was convicted and that led to his DD, his undistinguished record of service is not sufficiently meritorious to support clemency in this case.  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.

ABCMR Record of Proceedings (cont)                                         AR20080015185



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ABCMR Record of Proceedings (cont)                                         AR20080015185


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