IN THE CASE OF:	  

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090009832 


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 a general discharge.

2.  The applicant states, in effect, that he believes it would best serve him and society if his discharge was upgraded.  He acknowledges his past faults and his bad behavior and he indicates that the discharge was due to his immaturity and very bad decision making on his part.  He goes on to state that since his discharge he has become a certified and licensed truck driver, that he attends church, that he constantly tries to improve himself and those around him, and that his citizenship has been exemplary.  

3.  The applicant provides no documentary evidence 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 was born on 25 December 1968.  He enlisted in the Regular Army on 4 January 1991 for a period of 4 years.  He served as a cannon crewmember. 

3.  On 28 January 1994, in accordance with his pleas, the applicant was convicted by a general court-martial of distributing crack cocaine and marijuana, and being absent without leave (AWOL) from 10 December 1993 to 
17 December 1993.  He was sentenced to be confined for 8 years, to forfeit $600.00 pay per month for 96 months, and to be discharged from the service with a dishonorable discharge.  On 8 April 1994, the convening authority approved the sentence but suspended confinement in excess of 72 months for 48 months.

4.  On 13 June 1994, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

5.  On 19 December 1994, the convening authority ordered the dishonorable discharge to be executed.

6.  Accordingly, the applicant was discharged with a dishonorable discharge on 13 January 1995 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 2 years, 11 months, and 6 days of creditable active service with 399 days of lost time due to AWOL and confinement.

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states 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 ordered duly executed.

8.  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.

9.  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.  Age is not a sufficiently mitigating factor.  The applicant was 22 years old when he enlisted and he served almost 3 years of service prior to his general court-martial conviction.   Additionally, good post-service conduct alone is not normally a basis for upgrading a discharge.

2.  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.

3.  The applicant's record of service included one general court-martial conviction for serious drug offenses and 399 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general 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)                                         AR20090009832





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ABCMR Record of Proceedings (cont)                                         AR20090009832



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