IN THE CASE OF:	  

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090006562 


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. 

2.  The applicant states, in effect, that it has been 12 years or more since his discharge.  He acknowledges that he made a mistake and he believes that he has paid for his mistake.  He states that prior to his discharge, he honorably served for 4 years and would like the Board to consider his good years and upgrade his discharge so that he may be eligible for Department of Veterans Affairs (VA) benefits.  He states the upgrade will also provide him greater opportunites in the civilian job market.  

3.  The applicant does not provide any supporting evidence with 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 enlisted in the Regular Army on 28 July 1987.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty 31V (Unit Level Communications Maintainer).  The highest rank he held was specialist/pay grade E-4.

3.  On 31 July 1993, the applicant was assigned to Headquarters and Headquarters Company, 1st Brigade, 1st Infantry Division.  

4.  On 3 October 1994, the applicant was convicted by a general court-martial of the following offenses:  He pled guilty and was found guilty of one specification of conspiracy to distribute cocaine; three specifications of distributing cocaine; and one specification of making and uttering checks with insufficient funds with the intent to deceive.  He was sentenced to reduction in rank to private/pay grade
E-1, a forfeiture of all pay and allowances, confinement for 7 years, and a dishonorable discharge.  The sentence was adjudged on 3 October 1994.

5.  On 17 January 1995, the convening authority approved only so much of the applicant's sentence that provided for a reduction to private/E-1, a forfeiture of all pay and allowances, and a bad conduct discharge.  The confinement portion of the sentence in excess of 48 months was suspended for 48 months in accordance with a pretrial agreement.

6.  On 15 March 1995, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. 

7.  General Court-Martial Order Number 114, dated 27 July 1995, issued by U.S. the Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, KA affirmed the sentence and with Article 71(c) of the Uniform Code of Military Justice complied with, ordered the execution of the dishonorable discharge. 

8.  On 25 August 1995, the applicant was discharged under the provisions of Army Regulation 635-200.  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged as a result of a court-martial with a dishonorable discharge.  His net active service was 7 years, 2 months, and 6 days and he had 322 days of lost time.

9.  On 23 January 1996, the Army Clemency and Parole Board denied the applicant parole.

10.  On 26 February 1996, the Deputy Assistant Secretary (Army Review Boards) reviewed the applicant's request for appeal and disapproved his application for parole. 

11.  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.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at that time, governs the separation of enlisted Soldiers on active duty.  Chapter 3 (Character of Service/Description of Separation), Section III Characterization of Service), 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.  

13.  Army Regulation 635-200, Chapter 3, Section III, paragraph 3-7b, in effect at that time, 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.

14.  Army Regulation 635-200, paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a General Court-Martial and that a Soldier will be given a bad conduct 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offenses 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.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized judgment of the members of the court-martial. 

2.  The evidence of records shows he was given a dishonorable discharge pursuant to an approved sentence of a general court-martial to which he had pled guilty of all specifications and charges.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  Therefore, he is not entitled to an upgrade of his discharge.

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on his length of service, grade at the time of the offense, disciplinary history, and the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case.  

4.  Discharges are not upgraded solely for the purpose of making the applicants eligible for VA benefits or employment opportunities.  Each case is individually reviewed and a determination is made based on its merits when an applicant requests an upgrade of the discharge.

5.  Records are not corrected solely for the purpose of establishing eligibility for benefits from another agency and good post service conduct alone is not sufficiently mitigating to upgrade a properly-issued 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)                                         AR20090006562



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ABCMR Record of Proceedings (cont)                                         AR20090006562



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