IN THE CASE OF:	  

		BOARD DATE:	    17 June 2010

		DOCKET NUMBER:  AR20090021580 


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 he apologizes for his actions, realizes they were wrong, and has learned from his mistake.  He states that he is now giving back to the youth in his community by encouraging them to get an education and telling them that the Army is a good place to further their education.  He also states that his military records will show his success as a leader.

3.  The applicant provides three letters of support.

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's military records show he enlisted in the South Carolina Army National Guard on 2 July 1976 where he served until he was ordered to active duty for unsatisfactory participation on 13 January 1980.  He was awarded the military occupational specialty of unit supply specialist.  The highest rank/grade he held was sergeant/E-5.

3.  His records show he enlisted in the Regular Army for 3 years on 6 May 1981 and for 6 years on 30 October 1985.

4.  General Court-Martial Order Number 40, dated 5 April 1991, shows the applicant, then a sergeant, was found guilty of three specifications of wrongfully distributing marijuana and one specification of wrongfully introducing marijuana onto a military installation.  The sentence was adjudged on 7 February 1991.  He was sentenced to be reduced to private/E-1, confined for 4 years, and dishonorably discharged.  The sentence was approved on 5 April 1991.

5.  On 8 July 1991, the appellate review was completed and the sentence was affirmed.  Consideration of the petition for review by the U.S. Army Court of Military Review was denied.  On 9 December 1991, the dishonorable discharge was ordered executed.

6.  On 10 January 1992, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-10, as the result of a court-martial.  He was given a dishonorable discharge.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued shows he completed 9 years, 9 months, and 1 day of active duty for this period of service.  The form also shows he completed a combined 5 years, 4 months, and 18 days of prior active and inactive service.  Item 29 (Dates of Time Lost during This Period) of this form contains the entry "Under Title 10, U.S. Code, Section 972  910207-911029.  After normal expiration of term of service  911030-920110."

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provided that a general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A discharge with a characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

8.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence was ordered duly executed.

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.  The applicant was issued a dishonorable discharge pursuant to the approved sentence of a general court-martial for wrongfully distributing marijuana and wrongfully introducing marijuana onto a military installation.  The appellate review was completed and the affirmed sentence ordered duly executed.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The applicant's entire military record was taken into consideration and given the seriousness of the offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

3.  The applicant's post-service conduct and accomplishments are commendable.  However, they are insufficient to warrant upgrading a properly-issued discharge.

4.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to 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)                                         AR20090021580



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ABCMR Record of Proceedings (cont)                                         AR20090021580



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