IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090017735 


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 upgrade of his dishonorable discharge.

2.  The applicant states he did not commit the offenses.  He was only guilty of failing to snitch on a friend.  He believes he deserves an upgrade because he has stayed out of trouble since his release and has earned a college degree.

3.  The applicant provides no documentation to substantiate his case.

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 enlisted on 21 October 1983, completed training as an infantryman, and progressed to pay grade E-4.

3.  On 7 September 1984, the suspended portion of a previous nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice was vacated. 

4.  He received NJP on 12 September 1985 for dereliction of duty and stealing from a fellow Soldier.

5.  At a 19 December 1985 special court-martial the applicant pled guilty to assaulting a sergeant in the performance of his duties and breaking restriction.  The sentence, which included a bad conduct discharge, was affirmed upon review and ordered executed, but further misconduct precluded the applicant's discharge.  

6.  On 20 May 1986, a general court-martial found him guilty of distributing three doses of lysergic acid diethylamide (LSD) on 10 February 1986 and 40 doses of LSD on 16 February 1986 and of endeavoring to influence the testimony of others.  The convening authority approved the sentence of reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 54 months, and a dishonorable discharge.  Except for the punitive discharge the sentence was ordered executed.

7.  The U.S. Army Court of Military Review affirmed the finding and sentence.  On 28 August 1987, Article 71, UCMJ having been complied with, the discharge was ordered executed.

8.  On 18 September 1987, the applicant was separated with a dishonorable discharge.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  



10.  Paragraph 3-7b of the regulation 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.

11.  Court-martial convictions stand as adjudged or modified through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Boards 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 only then if clemency is determined to be appropriate.  Clemency is an act of mercy or leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he did not commit the offenses.  He was only guilty of failing to snitch on a friend.  He believes he deserves an upgrade because he has stayed out of trouble since his release and has earned a college degree.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  His contentions relate to evidentiary matters that could/should have been adjudicated during the trial or appellate process.

3.  In light of the applicant's overall record of service his unsubstantiated claim of good post service behavior does not justify any relief.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board 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.

5.  In view of the above, the applicant's request should be denied.



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)                                         AR20090017735





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ABCMR Record of Proceedings (cont)                                         AR20090017735



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