IN THE CASE OF:	  

		BOARD DATE:	        30 APRIL 2009

		DOCKET NUMBER:  AR20080019780 


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 an honorable discharge. 

2.  The applicant essentially states that he was unjustly accused and, at the time, he was giving a coworker a ride home, and that after he took his coworker to his house, he continued to pick up his son.  He also states, in effect, that he was stopped by military police for no apparent reason, and that the officer immediately went straight between his two front car seats and retrieved a very small bag of drugs that was planted in his vehicle.  He further contends that he had never done drugs before, and that he was given a urine test the next day in which he tested negative for drug use.  Additionally, he claims that two months later he found out that the coworker he gave a ride to had been in trouble and was going to jail, so he made a deal with the police to give up as many people as he could for a lesser sentence, and that he was not aware of the real reason his coworker asked him for a ride.  He further contends that since then, he has raised three children with good morals and dignity, maintained a marriage of over 29 years, and maintained an impeccable civilian record.   

3.  The applicant provides a multitude of evidence which has been indexed in a separate two-page document 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 military records show that having previously served in the United States Army Reserve from July 1977 to late-March 1979, he enlisted in the Regular Army on 27 March 1979.  He completed advanced individual training and was awarded military occupational specialty 75D (Personnel Records Specialist).  He served a tour in Germany from 9 June 1979 to 17 May 1982, then was reassigned to Fort Stewart, Georgia in June 1982.  On 30 September 1982, he reenlisted in the Regular Army for 3 years and for the continental United States (CONUS) to CONUS Station of Choice Reenlistment Option for Fort Dix, New Jersey.  On 27 January 1983, he departed Fort Stewart on a permanent change of station to Fort Dix, where he was assigned to Company A, Headquarters Command on 8 February 1983. 

3.  On 7 March 1984, the applicant accepted company-grade nonjudicial punishment (NJP) proceedings under Article 15 of the Uniform Code of Military Justice (UCMJ) for:

	a.  failing to go at the time prescribed to his appointed place of duty on or about 23 February 1984;

	b.  on or about 24 February 1984, with intent to deceive, make to his commanding officer an official statement, to wit:  "My wife was bleeding bad and I had to get her to the hospital, the doctor said she has a tumor that might be malignant and she might lose the baby," which statement was totally false and was then known by him to be so false; and

	c.  willfully disobeying a lawful order from his superior noncommissioned officer on or about 21 February 1984.

4.  The applicant's punishment for the aforementioned offenses consisted of reduction in rank and pay grade from specialist four/E-4 to private first class/E-3, forfeiture of $180.00, $80.00 of which was suspended for 180 days, extra duty for 14 days, and restriction for 13 days, with the restriction suspended for 180 days.  The applicant appealed this punishment and submitted matters in his own behalf, and on 21 March 1984, his battalion commander suspended his reduction to private first class/E-3 until 7 September 1984, which appears to have been subsequently remitted without action.  He also found the applicant not guilty of the last two charges.  On 22 March 1984, the applicant's suspended punishment of forfeiture of $180.00, $80.00 of which was suspended for 180 days, and restriction for 13 days, which was also suspended for 180 days, was mitigated by his company commander to forfeiture of $100.00. 

5.  On 19 December 1985, the applicant was convicted by a general court-martial of wrongfully distributing 2 grams, more or less, of cocaine on or about 6 June 1985.  He was sentenced to a dishonorable discharge, confinement for 9 months, forfeiture of $400.00 pay per month for 9 months, and reduction in rank and pay grade to private/E-1.  On 27 March 1986, the applicant's sentence was approved and, except for the dishonorable discharge, was ordered to be executed. 

6.  On 15 May 1986, the unexecuted portion of the applicant's sentence to confinement for 9 months was remitted.  He was released from confinement on that date and placed on excess leave pending appellate review of his case.

7.  On 20 June 1986, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.  On 30 September 1986, the applicant was discharged from the Regular Army pursuant to a duly reviewed and affirmed court-martial order and was issued a Dishonorable Discharge Certificate.  The  
DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued to him on that date shows the reason and authority for his discharge was Army Regulation 635-200 (Enlisted Personnel), Chapter 3, Section IV (Dishonorable and Bad Conduct Discharge).  
  
8.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a provides, in pertinent part, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

10.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his dishonorable discharge should be upgraded to an honorable discharge.

2.  The evidence provided by the applicant regarding his post service conduct was carefully considered.  However, good post service conduct alone is not a basis for upgrading a discharge.

3.  The applicant's contention that a coworker planted a very small bag of drugs in his vehicle was also noted; however, he did not provide any evidence to corroborate this contention.  Additionally, he was not convicted of possession of cocaine, but wrongful distribution of cocaine.  

4.  The applicant’s trial by general court-martial was warranted by the gravity of the serious offense with which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

5.  The applicant's entire record of service was also considered.  However, based on him receiving NJP under Article 15 of the UCMJ and his conviction by a general court-martial, the latter of which resulted in his dishonorable discharge, the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  While it was noted that the applicant was awarded the Army Achievement Medal and the Good Conduct Medal (2nd Award), there is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  

6.  After a thorough review of the available records, their is insufficient cause for clemency or basis to upgrade the applicant’s dishonorable discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for granting the applicant's 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.

ABCMR Record of Proceedings (cont)                                         AR20080019780



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ABCMR Record of Proceedings (cont)                                         AR20080019780



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