IN THE CASE OF:	  

		BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090007023 


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 his dishonorable discharge be upgraded.

2.  The applicant states his father was a Soldier, and he was born a Soldier.  He graduated from Hargrave Military Academy and joined the Army.  While on active duty, he went home on emergency leave because his father was dying of cancer.  Prior to returning to duty, the doctors told him his father had 2 to 6 months to live.  Two weeks after he returned to duty, his father passed away.  Devastated, he attended the funeral.  When he returned to duty, he was depressed.  One evening his squad members took him out for a night on the town and he was introduced to crack cocaine.  He began using it daily which eventually led to his downfall.

3.  The applicant further states he sought help through his chain of command, but did not receive any.  Later he was caught in a drug sting by criminal investigators and was court-martialed.

4.  The applicant provides:

	a.  a typewritten letter, dated 12 March 2009;

	b.  documents from his DA Form 201 (Military Personnel Records Jacket); and

	c.  documents pertaining to his general court-martial (GCM).

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.  With prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army for 4 years and entered on active duty on 15 March 1988.

3.  While stationed at Fort Stewart, GA, the applicant was tried by a GCM on 9 March 1989.  In accordance with his pleas of guilty, he was convicted of:

	a.  two specifications of wrongfully distributing 1 gram, more or less, of cocaine on or about 5 January 1989 and

	b.  two specifications of falsely making the signature of other person to certain checks with intent to defraud on or about 21 and 22 October 1988.

4.  The Court sentenced the applicant to confinement for 10 years, forfeiture of all pay and allowances, reduction to private (PVT)/E-1, and a dishonorable discharge.  The sentence was adjudged on 9 March 1989.

5.  On 12 May 1989, the GCM convening authority approved only so much of the sentence as provided for reduction to private (PVT)/E-1, forfeiture of all pay and allowances, confinement for 42 months, and a dishonorable discharge; except for that part of the sentence extending to the dishonorable discharge, the GCM convening authority ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 29 May 1990, the U.S. Army Court of Military Review affirmed the findings of guilty, but set aside the sentence, ordering a rehearing on the sentence.

7.  On 31 August 1990, a sentence rehearing was conducted before a GCM.  The applicant was sentenced to confinement for 24 months, reduction to private (PVT)/E-1, forfeiture of all pay and allowances, and a dishonorable discharge.  The GCM convening authority approved the sentence on 2 November 1990.

8.  On 7 February 1991, the U.S. Army Court of Military Review held the sentence as adjudged at the rehearing and approved by the convening authority correct in law and fact.  The sentence was affirmed.

9.  U.S. Disciplinary Barracks, Fort Leavenworth, KS, GCM Order Number 396, dated 9 December 1991, shows that after completion of all required post-trial and appellate reviews the convening authority ordered the applicant’s dishonorable discharge sentence executed.

10.  The applicant was discharged from the Army on 27 December 1991.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was separated in accordance with paragraph 3-10, Army Regulation 635-200 (Personnel Separations), as a result of court-martial with a dishonorable discharge.  This form further shows the applicant completed a total of 2 years, 3 months, and 3 days of creditable active military service.  He also had 559 days of lost time during this period of service.

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 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.

12.  Army Regulation 635-200 governs the separation of enlisted personnel.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant was convicted by a GCM which was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  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 Board acknowledges the applicant’s contention that he suffered from depression over the death of his father.  The Board further understands that the applicant claims to have been introduced to cocaine by fellow squad members.  However, the applicant was not charged with or convicted of possession and use of cocaine; he was charged with selling cocaine and with forging checks.  There is no rational link between using drugs as a way to deal with sorrow and dealing drugs to fellow Soldiers.

4.  The applicant was given a dishonorable discharge pursuant to an approved sentence of a GCM.  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.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to 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)                                         AR20090007023



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007023



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1