IN THE CASE OF:	

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090018244 


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 makes no statement. 

3.  The applicant provides no additional documentation 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.  On 22 August 1979, 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 to Europe.

3.  On 7 December 1979, the applicant was assigned duty as a cannoneer with 
B Battery, 1st Battalion, 39th Field Artillery Regiment.

4.  On 22 November 1980, the applicant was promoted to specialist four, pay grade E-4.

5.  On 3 June 1981, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 92 (six specifications) which included wrongful possession, transfer and selling of lysergic acid diethylamide (LSD); and for violation of Article 134 (three specifications) which included wrongful possession, transfer and selling of marijuana in the hashish form.

6.  On 21 August 1981, before a military judge at a general court-martial, the applicant pled not guilty to all charges and specifications.

7.  The military judge found the applicant guilty of all charges and specifications.  The applicant was sentenced to a reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement at hard labor for 5 years, and a dishonorable discharge.

8.  On 30 October 1981, the staff judge advocate (SJA), in a written review for the convening authority, summarized the charges, specifications, pleas, findings, and sentence.  The SJA also summarized the applicant's military service to include his training and awards.  The SJA recommended approval of the sentence. 

9.  On 5 November 1981, the convening authority approved the sentence and forwarded the record to The Judge Advocate General of the Army for review by the Court of Military Review.  

10.  On 16 June 1982, the United States Army Court of Military Review considered the entire record.  It considered two assigned errors and resolved those matters adversely to the applicant.  In view of the applicant's prior record and the testimony on his behalf in extenuation and mitigation, the period of confinement was reduced.  The findings of guilty were affirmed.  Only so much of the sentence was affirmed as provided for a dishonorable discharge, confinement at hard labor for 4 years, a forfeiture of all pay and allowances, and reduction to pay grade E-1. 
11.  General Court-Martial Order Number 797, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, Kansas, dated 13 October 1982, provided that only so much of the sentence promulgated in General Court-Martial Order Number 63, Department of the Army, Headquarters, 3rd Infantry Division, APO New York 09036, dated 5 November 1981, that provided for a dishonorable discharge, a forfeiture of all pay and allowances becoming due on and after the date of the convening authority's action, confinement at hard labor for 4 years, and reduction to pay grade E-1, adjudged on 21 August 1981, had been affirmed.  Article 71(c), UCMJ, having been complied with, the dishonorable discharge was ordered executed.

12.  The applicant's DD Form 214 shows that he was discharged on 
18 November 1982, under the provisions of Army Regulation 635-200, chapter 3, section IV with a dishonorable discharge.

13.  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.

14.  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.

15.  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.  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.

2.  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 to an honorable or general.

3.  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)                                         AR20090018244



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ABCMR Record of Proceedings (cont)                                         AR20090018244



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