IN THE CASE OF:	

		BOARD DATE:	 7 January 2010 

		DOCKET NUMBER:  AR20090012334 


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.

2.  The applicant states, in effect, that he has been an alcoholic since leaving the Federal Republic of Germany in 1982.  He has suffered from addiction for a long time and is now starting to change his life.  He was in a drug program at McGuire Hospital; however, he no longer qualifies for the program based on his discharge.  He suffers from depression, alcoholism and high blood pressure.  He is no longer able to afford the cost of medication needed for survival.  An honorable discharge would allow him to get the help he needs.  He wants to make amends for his negative actions and better his life.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), National Archives (NA) Form 13038 (Certification of Military Service), dated 21 August 2008; and a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) dated 21 May 2009.

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 22 November 1977, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  He was subsequently assigned for duty in Europe.

3.  On 21 March 1978, the applicant was assigned for duty as a cannoneer with A Battery, 2nd Battalion, 33rd Field Artillery Regiment.

4.  On 10 January 1979, the applicant was reduced from private, pay grade E-2 to private, pay grade E-1.  There is no documentary evidence in the available records showing the reason for this reduction.

5.  On 27 May 1980, the applicant reenlisted in the Regular Army.  He was subsequently returned to the United States for training in MOS 64C (Motor Transport Operator).  There is no evidence showing that he attended or completed this training.

6.  On 7 January 1981, the applicant was awarded MOS 76V (Materiel Storage Handling Specialist).  He was subsequently assigned to Fort Riley, Kansas.

7.  On 4 June 1982, the applicant departed Fort Riley for duty in Europe.

8.  On 14 July 1982, the applicant was assigned to the 123rd Maintenance Battalion in the Federal Republic of Germany.

9.  On 5 March 1984, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 92 for wrongful possession of drug paraphernalia (a smoking pipe) and for violation of Article 134 (five specifications) for wrongful possession/distribution of marijuana in the hashish form.

10.  On 3 April 1984, the applicant offered to plead guilty to all charges and specifications with the provision that the convening authority agree to approve no sentence in excess of confinement at hard labor for 1 year and 3 months; forfeiture of all pay and allowances; reduction to pay grade E-1; and a dishonorable discharge.
11.  On 11 April 1984, the convening authority accepted the applicant's offer to plead guilty.

12.  On 1 May 1984, before a Military Judge at a General Court-Martial, the applicant pled guilty to all changes and specifications.

13.  The military judge accepted the applicant's plea and found him guilty of all charges and specifications.  The Military Judge sentenced him to a reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for 2 years, and a dishonorable discharge.

14.  On 8 May 1984, the Staff Judge Advocate, in a written review for the convening authority, summarized the charges, specifications, pleas, findings, and sentence.  The Staff Judge Advocate also summarized the applicant's military service to include his awards, and lack of any previous nonjudicial punishment or court-martial convictions.  The Staff Judge Advocate recommended approval of only so much of the sentence as provided for reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for 1 year and 3 months, and a dishonorable discharge.

15.  On 10 May 1984, the convening authority approved only so much of the sentence providing for a dishonorable discharge, confinement at hard labor for 
1 year and 3 months, forfeiture of all pay and allowances, and reduction to pay grade E-1.

16.  On 28 September 1984, the United States Army Court of Military Review considered the entire record and held that the findings of guilty of Specifications 1 and 3 of Charge II were multiplicious and set aside the findings of guilty and dismissed the specifications.  The court stated that the applicant had suffered no prejudice as to sentence.  The remaining findings and sentence were affirmed.

17.  General Court-Martial Order Number 12, United States Army Correctional Activity, Fort Riley, Kansas, dated 10 January 1985, provided that the sentence to a dishonorable discharge, confinement at hard labor for 1 year and 3 months, forfeiture of all pay and allowances, and reduction to pay grade E-1, adjudged on 1 May 1984, as promulgated in General Court-Martial Order Number 45, Headquarters, 1st Armored Division, APO New York 09326, dated 10 May 1984, had been affirmed.  Article 71(c), UCMJ, having been complied with, the dishonorable discharge was ordered executed.

18.  The applicant's DD Form 214 shows that he was discharged on 7 June 1985, under the provisions of Army Regulation 635-200, Chapter 3, section IV and received a dishonorable characterization of service.
19.  Army Regulation 635-200 (Personnel Separations - Enlisted), 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.

20.  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.

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his dishonorable discharge should be upgraded to honorable so that he can continue to receive medical benefits for his addiction.

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 final discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his dishonorable discharge.

4.  The applicant's desire to obtain veterans medical benefits is not justification for an upgrade of an individual's discharge.

5.  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)                                         AR20090012334



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012334



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1