IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090007265 


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 to an honorable discharge so that he may receive benefits (medical, educational, and home loan).

2.  The applicant states, in effect, that an upgrade of his discharge is justified because he served honorably for 3 years before his court-martial.

3.  The applicant provides no documentary evidence 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 record shows he enlisted in the Regular Army and entered active duty on 23 October 1979.  Upon completion of advanced individual training, the applicant was awarded the military occupational specialty 73C (Finance Specialist).  The highest rank/grade the applicant attained was specialist/E-4; however, at the time of his discharge, he held the rank of private/
pay grade E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 May 1981 for violating Article 134 of the UCMJ by wrongfully having approximately 1.07 grams of marijuana in his possession.

4.  Headquarters, 3d Armored Division, General Court-Martial Order Number 67, dated 19 July 1983, shows the applicant was arraigned at Frankfurt, Germany, on numerous offenses at a general court-martial convened by the command.  The applicant was charged, pled guilty, and was subsequently found guilty of violating Article 134 of the UCMJ with the following synopsized specifications:

	a.  Specification 1 - wrongfully possessing approximately 100 grams of marijuana in the hashish form;

	b.  Specification 2 - wrongfully distributing approximately 100 grams of marijuana in the hashish form;

	c.  Specification 3 - wrongfully communicating a threat to kill the individual who had informed the U.S. Army Criminal Investigation Command; 

	d.  Specification 4 - wrongfully distributing an unknown quantity of marijuana; and

	e.  Specification 5 - wrongfully possessing an unknown quantity of marijuana.

5.  The sentence was adjudged on 9 June 1983 and the punishment was as follows:  reduction to private/E-1, forfeiture of all pay and allowances, confinement at hard labor for 14 months, and a dishonorable discharge.  The sentence was approved, but the execution of that portion thereof adjudging confinement at hard labor in excess of 1 year and 1 day was suspended for 1 year and 1 day, at which time, unless the suspension was sooner vacated, the suspended portion was to be remitted without further action.  The forfeitures of pay were to apply to pay and allowances which would become due on and after 19 July 1983.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  Pending completion of appellate review, the applicant was confined in the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas.  The Army Court of Military Review affirmed the findings and sentence.

6.  On 25 September 1986, the Court of Military Appeals set aside the Court's decision and concluded Specifications 1 and 5 were multiplicious for findings with Specifications 2 and 4 of the charge, ordered the Court to dismiss Specifications 1 and 5 of the charge, and returned the case to The Judge Advocate General for remand to the U.S. Army Court of Military Review to determine whether any additional remedial action was required.

7.  On 15 October 1986, the U.S. Army Court of Military Review ordered that the findings of guilty for Specifications 1 and 5 of the charge be set aside and dismissed and that the action of the convening authority, dated 19 July 1983, be set aside and the record of trial be returned to The Judge Advocate General for a new review and action by a different convening authority.

8.  Headquarters, I Corps and Fort Lewis, Fort Lewis, Washington, was selected as the site for the new review and action by a different convening authority.  General Court-Martial Order Number 2, dated 21 January 1987, shows:

	a.  the applicant was arraigned and tried before a general court-martial which convened at Frankfurt, Federal Republic of Germany, pursuant to Court-Martial Convening Order Number 188, Headquarters, 3d Armored Division, dated 20 April 1983, as amended by Court-Martial Convening Order Number 249, Headquarters, 3d Armored Division, dated 6 June 1983.  The applicant was charged, pled guilty, and was subsequently found guilty of violating Article 134 of the UCMJ with the aforementioned specifications.

	b.  the applicant was sentenced to be reduced to private/E-1, to forfeiture all pay and allowances, to be confined at hard labor for 14 months, and to be dishonorably discharged from the service.  The sentence was adjudged on 9 June 1983.

	c.  the action taken by the Commander, 3d Armored Division, dated 19 July 1983, and the findings of guilty of Specifications 1 and 5 of the charge were set aside and the specifications were dismissed on 15 October 1986 by the U.S. Army Court of Military Review pursuant to Article 66 of the UCMJ.

	d.  another review having been completed, the general court-martial convening authority (Commander, I Corps and Fort Lewis) ordered the following actions on the record of trial:

		(1)  only so much of the sentence as provided for a dishonorable discharge, confinement at hard labor for 1 year and 1 day, forfeiture or all pay and allowances, and reduction to the grade of private/E-1 were approved;

		(2)  the forfeitures of all pay and allowances would become due on and after 21 January 1987;

		(3)  the record of trial was to be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review; and

		(4)  the portion of the sentence pertaining to confinement had been served.

9.  U.S. Disciplinary Barracks, U.S. Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, General Court-Martial Order Number 353, dated 21 October 1987, shows the applicant's aforementioned sentence had been finally affirmed.  The appellate review according to Article 71(c) had been complied with and the dishonorable discharge was directed to be executed.  The order also shows that pending completion of his sentence, the applicant was to remain confined in the U.S. Disciplinary Barracks.

10.  The record shows that on 11 December 1987 the applicant was discharged accordingly.  The DD Form 214 issued to him at the time shows the applicant's service was characterized as "dishonorable" and the narrative reason for his separation was "as a result of court-martial."

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 sets forth the basic policy for the separation of enlisted personnel.  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.

13.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he served honorably for 3 years before his court-martial trial.

2.  The evidence shows the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully having approximately 1.07 grams of marijuana in his possession nearly 2 years prior to his court-martial offenses.

3.  The applicant's record reveals he committed serious crimes which rendered him triable by court-martial for offenses punishable by a bad conduct or dishonorable discharge.  This crime culminated in his trial by general court-martial which was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  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.

5.  After review of the applicant’s available record of service, it was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offenses for which he was convicted, it is also clear that his service was not satisfactory, thus did not meet the criterion for discharge under either general or honorable conditions.  Therefore, there is no basis for a grant of clemency in the form of an upgraded discharge.

6.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for benefits that are available to Soldiers who served honorably.  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 any evidence that would satisfy this requirement.


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)                                         AR20090007265



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ABCMR Record of Proceedings (cont)                                         AR20090007265



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