IN THE CASE OF:	   

		BOARD DATE:	        8 January 2009

		DOCKET NUMBER:  AR20080015196 


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.

2.  The applicant states, in effect, the upgrade is for the purpose of obtaining veteran's benefits.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this 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 records show he enlisted on 6 October 1987.  He completed basic combat and advanced individual training.  Upon completion of training, he was awarded the military occupational specialty 19D (Calvary Scout).  The applicant reenlisted on 24 September 1991 for four years.

3.  On 2 December 1994, the applicant was convicted by a general court-martial of wrongful possession of approximately 48 pounds of marijuana with intent to distribute, of a second specification of possession of marijuana, and of assault consummated by a battery.  He was sentenced to confinement for eight years, forfeiture of $450.00 per month for eight years, reduction to the grade of private/E-1, and to be dishonorably discharged from the service.  

4.  On 15 February 1995, the convening authority approved the sentence as adjudged and ordered it executed except for the part of the sentence extending to a dishonorable discharge.

5.  On 17 September 1999, the convening authority, upon completion of appellate review, ordered the dishonorable discharge to be executed.

6.  Accordingly, the applicant was discharged with a dishonorable discharge on 
15 October 1999 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 3-10, as a result of a court-martial.  He had served 
6 years and 10 months of total active service with 1483 days of lost time due to being in confinement.

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

8.  Army Regulation 635-200, 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 member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  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.

10.  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.  The applicant's request for a discharge upgrade was carefully considered.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veteran’s benefits.

3.  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.

4.  The applicant's record of service included a general court-martial conviction and 1483 days of lost time.  He was discharged with a dishonorable discharge for wrongful possession of approximately 48 pounds of marijuana with intent to distribute, of a second specification of possession of marijuana, and of assault consummated by a battery.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgrade of his discharge.

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)                                         AR20080015196





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ABCMR Record of Proceedings (cont)                                         AR20080015196



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