IN THE CASE OF:	  

		BOARD DATE:	    9 September 2010

		DOCKET NUMBER:  AR20100008409 


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.

2.  The applicant states that he wants his discharge upgraded so he will be eligible to receive Department of Veterans Affairs (VA) benefits when he is released from his fourth prison term.  Prior to joining the Army he had been running the streets and had gotten into trouble for unlawful use of a motor vehicle.  He then got into trouble for possession of a controlled substance.  For both of these violations, he received probation and was required to complete an in-patient substance abuse rehabilitation program.  He failed to complete the program and was sent to the juvenile authorities.  His only hope was to join the Army.  He joined the Army at 17 years of age to get away from a violently abusive father.  When he enlisted in the Army he was asked if he had ever been convicted of a felony.  He answered "no" because he never considered his probations as felony convictions.  Less than a year after his enlistment, the Army began the administrative discharge process because he had lied about his convictions.  He had lost all hope of living a useful and productive life.  He wrote several hot checks and was absent without leave (AWOL).  This ultimately led to a general court-martial and incarceration.  He was confined at Fort Riley, Kansas, but due to disciplinary reasons, he was transferred to Fort Leavenworth, Kansas.

3.  The applicant further states that while serving his sentence in these facilities, he learned how to buy, sell, and manufacture illegal drugs.  He is now 42 years of age.  His family is strewn across the country.  As he once again comes up for parole consideration, he is faced with the fact that with a dishonorable discharge, four prison terms, and an ongoing drug and alcohol problem, his only source of income remains in dealing in drugs.  He respectfully requests an upgrade of his dishonorable discharge to qualify for VA benefits that will enable him to attend a substance abuse rehabilitation program and assist him with obtaining training that will help him find employment in a useful and productive occupation.

4.  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 20 February 1985, the applicant, at 17 years of age, enlisted in the Regular Army with the consent of his mother.  He completed his initial training and was awarded military occupational specialty (MOS) 13F (Fire Support Specialist).

3.  On 7 June 1985, the applicant departed Fort Sill, Oklahoma, for duty in the Federal Republic of Germany, where he was assigned to the 2nd Battalion, 78th Field Artillery Regiment.

4.  On 3 December 1985, the applicant accepted nonjudicial punishment for wrongfully damaging a plate glass window and having a blood alcohol level of 0.52 milligrams/milliliters while on duty.

5.  General Court-Martial Order Number 76, Headquarters, 1st Armored Division, dated 9 July 1986 shows that the applicant was found guilty of:

	a.  Charge I (three specifications) for violation of Article 86 (AWOL), Uniform Code of Military Justice (UCMJ), by failing to go to his appointed place of duty on 19 January 1986; and by being absent on 19 and 27 January 1986;

	b.  Charge II (one specification) for violation of Article 90 by willfully disobeying  a lawful command from a commissioned officer;

	c.  Charge III (one specification) for violation of Article 91 by willfully disobeying a lawful order from a noncommissioned officer;

	d.  Charge IV (one specification) for violation of Article 92 by being derelict in his duties by sleeping on guard duty;

	e.  Charge VI (19 specifications) for violation of Article 123a of which two specifications were by wrongfully and unlawfully make and utter checks knowing that insufficient funds were in the bank) and 17 specifications of dishonestly failing to maintain sufficient funds for payment of checks; and

	f.  Charge VII (two specifications) for violation of Article 134 by breaking restriction.  

6.  On 1 May 1986, the military judge sentenced the applicant to a forfeiture of all pay and allowances, confinement for a period of 2 years, and a dishonorable discharge.

7.  On 9 July 1986, the convening authority approved the sentence; and, except for the dishonorable discharge, ordered it to be executed.

8.  On 3 December 1986, the U.S. Army Court of Military Review ordered, to reflect the true proceedings at trial of the applicant, that General Court-Martial Order Number 76, Headquarters, 1st Armored Division, APO New York 09326, dated 9 July 1986, be corrected to show his rank as private, pay grade E-1.

9.  On 5 December 1986, the U.S. Army Court of Military Review considered the entire record and held that the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the findings of guilty and the sentence were affirmed.

10.  General Court-Martial Order Number 278, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 28 August 1987, affirmed the sentence to a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years, adjudged on 1 May 1986, as promulgated in General Court-Martial Order Number 76, Department of the Army, 1st Armored Division, APO New York 09326, dated 9 July 1986.  Article 71(c) having been complied with, the sentence was to be executed.

11.  The applicant's DD Form 214 shows that he was discharged from the Regular Army on 18 September 1987, under the provisions of Army Regulation 
635-200, paragraph 3-10, as a result of court-martial, other.  He received a dishonorable characterization of service.

12.  Army Regulation 635-200, 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.

13.  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.

14.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States 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 requests that his discharge be upgraded so he will be eligible to receive (VA) benefits.

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 characterizes the misconduct for which the applicant was convicted.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.
	
4.  The applicant's desire to obtain VA benefits is not justification to upgrade his discharge.

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)                                         AR20100008409





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)