IN THE CASE OF:	  

		BOARD DATE:	        23 January 2009

		DOCKET NUMBER:  AR20080016730 


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 1984 dishonorable discharge be upgraded.

2.  The applicant states he still maintains he was innocent of the charges.  He states he was in charge of the building but the drugs were found in a garbage can outside the building.

3.  The applicant provides no evidence in support of his request but does submit two character statements, one dated 1992 and a second dated 1996.

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.  Records available to the Board indicate the applicant served an initial period of active duty between October 1974 and October 1977.  On 18 April 1978, the applicant enlisted in the Regular Army and entered active duty.  He entered active duty in his prior enlisted grade of specialist (E-4).

3.  The applicant was initially assigned to Fort Dix, New Jersey, following completion of training and in January 1980 was reassigned to an ordnance company in Germany.

4.  On 1 June 1982, the applicant was charged with multiple specifications of possession, transfer, and sale of marijuana between 29 March 1982 and 3 May 1982.  He was also charged with operating a vehicle while drunk on 16 May 1982.

5.  In August 1982 the applicant, who pled not guilty to all charges, was tried and found guilty by a general court-martial of one count each of possession, sale, and transfer of marijuana in the hashish form.  He was also found guilty of operating a vehicle while drunk.  He was sentenced to a dishonorable discharge, 5 years confinement at hard labor, total forfeiture of pay, and reduction to pay grade E-1.  The sentence was approved on 27 August 1982.  The applicant was confined at Fort Leavenworth, Kansas.

6.  On 23 February 1984, the U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, published General Court Martial Order Number 134.  The sentence to a dishonorable discharge, 5 years confinement at hard labor, total forfeiture of pay, and reduction to pay grade E-1 which was adjudged on 10 August 1982, having been finally affirmed and Article 71(c) having been complied with, the sentence was ordered executed.

7.  On 8 March 1984, having been retained in the Army for 477 days beyond his scheduled separation date for the convenience of the government, the applicant was discharged from the Army with a dishonorable discharge in the rank and pay grade of private, E-1, pursuant to the sentence of a general court-martial.

8.  The letters submitted by the applicant in support of his request to the Board were authored in 1992 and 1996.  Neither letter spoke to the basis of the applicant’s discharge, but rather noted where he had been employed and that he was essentially a good and honest employee.

9.  Army Regulation 635-200 (Personnel Separations), 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, 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 separation specifically allows such characterization.

11.  Title 10, U.S. 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.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant argues that he was innocent of the charges against him but provides no evidence to substantiate that argument.

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.  Therefore, there is no legal basis for granting the applicant's request for relief.

4.  The applicant’s reported good post-service conduct and achievements are noted.  However, they are not sufficient to mitigate the offenses committed during his military service nor warrant upgrading his character of service as a matter of equity.

5.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's dishonorable discharge.

6.  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)                                         AR20080016730



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ABCMR Record of Proceedings (cont)                                         AR20080016730



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