IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090009217 


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 an upgrade of his dishonorable discharge.

2.  The applicant states, in effect, that he was electrocuted in June 1981 and this resulted in a change in his personality.  He states that he sustained an electrical injury in 1981 when he was cleaning the barracks after a "GI party" and that he was unconscious for 1 week.  He states that he was hospitalized and after he regained consciousness he could not remember anything.  He states he was involved in an accident during a mission when the vehicle he was driving overturned and landed in a ditch.  He also states that he suffers every day, he is unemployed, he has no insurance, and that he does not always have access to medication.  He states that he is in need of mental and physical treatment.  Additionally, he states that he contracted Hepatitis C upon entry into the Army when he received his vaccinations.

3.  The applicant provides:

	a.  a letter from a former service member, dated 12 November 2008, attesting that he was present when the applicant's electrical shock occurred;

	b.  Doctor's Progress Notes;

	c.  a Chronological Record of Medical Care;

	d.  a Department of the Army Report of Survey, dated 17 April 1981;

	e.  Fayetteville, North Carolina, Veterans Affairs (VA) Medical Center Progress Notes; and

	f.  three letters from family members attesting to his good character and post service conduct.

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.  On 4 September 1979, the applicant enlisted in the Regular Army (RA) in Raleigh, North Carolina, for 3 years, in the pay grade of E-1.  He successfully completed his training as a multichannel communications equipment operator.  He was promoted through the ranks to specialist four (E-4).

3.  Nonjudicial punishment was imposed against the applicant on 21 July 1982 for failure to go to his appointed place of duty.  His punishment consisted of a reduction to the pay grade of E-3 (suspended until 2 September 1982), a forfeiture of pay in the amount of $84.00, and 14 days of restriction and extra duty (suspended until 2 September 1982).

4.  The applicant reenlisted in the RA for 3 years on 1 September 1982.

5.  On 18 April 1984, the applicant was convicted, pursuant to his pleas, by a general court-martial of distributing marijuana in the hashish form on 7 October 1983 and 1 November 1983; introducing marijuana in the hashish form with intent to distribute on 1 November 1983; and being absent without leave (AWOL) from 5 January 1984 until 15 February 1984.  He was sentenced to a dishonorable discharge; confinement at hard labor for 18 months; a reduction to the pay grade of E-1; and a forfeiture of pay and allowances.  On 22 May 1984, the convening authority approved the sentence as adjudged.  


6.  On 14 August 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On 20 November 1984, General Court-Martial Order Number 588, United States Army Correctional Activity, Fort Riley, Kansas, shows the findings and sentence as approved by the convening authority had been affirmed, and ordered the dishonorable discharge to be executed.

7.  On 12 April 1985, the applicant completed a Report of Medical History indicating that his health was excellent.  The slot for "loss of memory or amnesia" is marked "no."  The accompanying Report of Medical Examination does not list amnesia.

8.  On 23 April 1985, the applicant acknowledged that he underwent a medical examination on or about 18 April 1985 in conjunction with his separation action and that to the best of his knowledge, there was no significant change to his medical condition since the accomplishment of his medical examination.

9.  Accordingly, on 23 April 1985, the applicant was dishonorably discharged under the provisions of Army Regulation 635-200, chapter 3 as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 4 years, 3 months, and 27 days of net active service and he had approximately 1 year, 3 months, and 15 days of lost time due to being AWOL and in confinement.

10.  The Doctor's Progress Notes, Chronological Record of Medical Care and Department of the Army Report of Survey that the applicant submitted shows that he sustained an electrical shock from a wall socket in June 1981 and that he was involved in a vehicle accident on 9 April 1981.  The VA Medical Center Progress Notes that he submitted were signed by medical officials between February and March 2009 and the notes reflect the applicant's medical, social and military history, illnesses, assessments, treatment plans, recommendations, and medications.  The three letters that he submitted are from family members attesting to his good character and post service conduct, and the letter that he submitted from a former service member attests to the fact that he was present when the applicant sustained the electrical shock.

11.  Title 10, U. S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.

12.  Army Regulation 635-200 (Enlisted Personnel) 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.  The appellate review must be completed and the affirmed sentence duly executed.

13.  Paragraph 3-7 of Army Regulation 635-200 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.  

14.  Paragraph 3-7 also 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 due to an electrical shock that he sustained in June 1981, which resulted in a change in his personality.

2.  The applicant's contentions have been considered and the documents that he submitted have been considered.  However, there is insufficient evidence to substantiate his contention that the electrical shock that he sustained was the cause of his acts of misconduct.  There is no mention in his records either made by him or medical officials that he was experiencing a change in his personality while he was in the Army.  The available evidence show that it was not until 2008/2009 that he alleged a personality change which is almost 24 years after his discharge from the Army.  

3.  The evidence of record shows the applicant was convicted of distributing marijuana in the hashish form on 7 October and 1 November 1983, introducing marijuana in the hashish form with intent to distribute on 1 November 1983, and being AWOL from 5 January until 15 February 1984.  He was convicted pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence was duly executed.  

4.  The applicant’s 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, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

5.  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 has failed to submit evidence that would satisfy this requirement.

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.




      _______ _   _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)                                         AR20090009217



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009217



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1