IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100008801 


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 to a general discharge.

2.  The applicant does not provide an explanation.

3.  The applicant provides no documentary evidence 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.  The applicant enlisted in the Regular Army on 15 March 1983 and served as a cannon crewman. 

3.  On 16 February 1984, nonjudicial punishment was imposed against the applicant for using marijuana.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay, and extra duty.  On 9 April 1984, the suspended portion of the sentence was vacated.

4.  On 6 September 1984, a bar to reenlistment was imposed against the applicant.

5.  On 21 February 1986, the applicant was convicted by a general court-martial of five specifications of distributing marijuana, one specification of using marijuana, and one specification of possessing marijuana.  He was sentenced to be confined for 30 months, to be reduced to E-1, to forfeit all pay and allowances, and to be discharged from the service with a dishonorable discharge.  On 
24 April 1986, the convening authority approved the sentence.

6.  On 4 June 1986, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

7.  On 6 November 1986, the convening authority ordered the dishonorable discharge to be executed.

8.  Accordingly, the applicant was discharged with a dishonorable discharge on 
5 December 1986 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of a court-martial.  He had served a total of 2 years, 11 months, and 6 days of creditable active service with 288 days of time lost.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

10.  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.

11.  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.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The applicant's record of service included one nonjudicial punishment, a bar to reenlistment, one general court-martial conviction for numerous drug offenses, and 288 days of time lost.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20100008801



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ABCMR Record of Proceedings (cont)                                         AR20100008801



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