IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20090001421 


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 that, as exemplified in the letters from his peers, he has changed into a man of respect, honor, and diligence.  He states he has become a man of God, currently a member and deacon of Bethesda Outreach Ministries.  He states that as a manager of a propane company he is able to demonstrate his new-found qualities of leadership and outstanding communication.  He states that because of his state of employment, he is able to provide support for his wife and children financially and due to his change of lifestyle he is able to provide support for them physically and emotionally.  He states that an upgrade to his discharge would add to his character and enable him to truly be a man of honor and a man who loves and respects all beings as well as his country.

3.  The applicant provides four letters of reference 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 military personnel records show he enlisted in the Regular Army on 26 May 1981 for a period of 4 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 63B (Light Wheel Vehicle and Power Generator Mechanic).

3.  On 6 January 1983, the applicant was assigned to the 512th Maintenance Company in Germany.  The applicant was promoted to specialist four/pay grade E-4 on 1 September 1983.  On 26 June 1984, he extended his enlistment for 
8 months to complete a with-dependents tour in Germany.  On 6 December 1985, he reenlisted for a period of 3 years.

4.    On 9 July 1986, the applicant was reduced to private first class/pay grade 
E-3 as a result of nonjudicial punishment (NJP).  However, the details of the NJP are not available in the applicant's Military Personnel Records Jacket.

5.  On 27 January 1987, the applicant was tried before a general court-martial.

	a.  The applicant pled not guilty and was found not guilty of wrongful distribution of .192 grams of heroin on or about 16 September 1986.

	b.  The applicant pled not guilty but was found guilty of wrongful distribution of .195 grams of heroin on or about 22 September 1986.

	c.  The applicant's sentence consisted of confinement for 2 years, forfeiture of all pay and allowances, reduction to the grade of private/pay grade E-1, and a dishonorable discharge.

6.  On 25 March 1987, the convening authority approved the sentence.  

7.  On 15 July 1987, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.  

8.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 45, dated 1 February 1988, ordered the applicant's dishonorable discharge executed.
  
9.  On 25 March 1988, the applicant was discharged with a dishonorable discharge.  Additional instructions contained on his discharge orders indicated that he would remain in confinement until released by proper authority.

10.  A statement, dated 27 May 2008, from the State Project Director of Operations Iowa, indicated the director had known the applicant for over 6 years.  The director stated the applicant was a tremendous advocate in helping with the youth, helping mend relationships, and bringing people together.  

11.  A statement, dated 8 September 2008, from the pastor of the Bethesda Word of Faith Church in Sarasota, FL, indicated the pastor found the applicant to be an honest, dependable, and responsible person and that he was a man of integrity.

12.  An unsigned letter, dated 25 September 2008, from the President, Royal Volunteer Fire Department, attested to the applicant's serving as a volunteer fire fighter until his employment prevented him from serving.  The president also stated the applicant was elected to the Royal Park and Recreation Board, which is responsible for developing and oversight of various programs.

13.  An unsigned Letter, dated 25 September 2008, from the President, Royal Library Association, attested to the applicant having been an instrumental part of the fund raising committee for the Royal Library Association.  The president found the applicant to be a man of great integrity.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

15.  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 evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  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.  The applicant's-post service achievements and conduct are noted.  However, good post service conduct alone is not sufficiently mitigating to upgrade a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.  Given the seriousness of the offense for which he was convicted, the applicant's post service conduct was not considered sufficiently mitigating to warrant clemency in this case.

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Given the seriousness of the offense for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.  

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's 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)                                         AR20090001421





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ABCMR Record of Proceedings (cont)                                         AR20090001421



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