IN THE CASE OF:  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100011650 


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 states:

* He cannot seek employment with a dishonorable discharge
* He is trying to get his life back on track
* It was an isolated incident
* He served his time
* His discharge was too harsh

3.  The applicant provides:

* His DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 31 August 2006, 24 October 2002, and 7 February 2001
* General Court-Martial Order (GCMO) Number 95, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 12 May 2006
* U.S. Army Court of Criminal Appeals Decision, dated 14 December 2005
* GCMO Number 18, issued by Headquarters, U.S. Army Air Defense Artillery Center, Fort Bliss, TX, dated 16 June 2005
* Numerous service personnel records 


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The American Legion, as counsel for the applicant, states in a typewritten statement:

* In the interest of equity, the applicant's discharge is too harsh
* The applicant contends his desire to enlist in the Regular Army, transferring from the U.S. Army Reserve (USAR), and a period of active duty after the attack on the World Trade Center warrants relief
* The applicant requests the Board consider in all fairness that he did not receive counseling
* The applicant reached out for assistance (compassionate reassignment) and the records indicate he did not receive any assistance from his chain of command
* Records show the applicant completed an honorable assignment in October 2002 after the attack on the World Trade Center and the Pentagon
* Documentation from the applicant's family indicates he made every attempt to provide assistance to his young family as it was taking a toll on his decision to take an active duty assignment with the military 
* Documentation indicates the applicant made every attempt to explain his need for a compassionate reassignment to avoid the continued financial burden his young family was experiencing 

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 USAR on 18 August 2000 for a period of 8 years.  He was ordered to active duty for training on 24 August 2000 and he was released from active duty on 7 February 2001.  He was ordered to active duty on 
25 October 2001 for participation in operations in response to the World Trade Center and Pentagon attacks.  On 24 October 2002, he was again released from active duty.

3.  The applicant was ordered to active duty on 27 January 2005 resulting in an active duty commitment of 1 year, 7 months, and 28 days.

4.  On 4 February 2005, the applicant was convicted, pursuant to his pleas, by a general court-martial for distributing approximately 13.85 pounds of marijuana on or about 8 January 2004, possessing approximately 14.2 pounds of marijuana with intent to distribute on or about 8 January 2004, possessing approximately 4.2 grams of marijuana on or about 22 December 2003, using marijuana on or about 11 August 2004, and transporting a handgun on or about 22 December 2003.  He was sentenced to confinement for 48 months, reduction to private (PV1)/E-1, forfeiture of all pay and allowances, and discharge from the service with a dishonorable discharge.  On 16 June 2005, the convening authority approved the sentence.

5.  On 14 December 2005, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  

6.  On 12 May 2006, the convening authority ordered the dishonorable discharge to be executed

7.  Accordingly, the applicant was discharged with a dishonorable discharge on 31 August 2006 under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial.  

8.  In support of his claim, the applicant provided two recommendations, dated March 2004, from a chaplain and social worker, for a compassionate reassignment.  He also provided statements of support from family members. 

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 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 Board does not upgrade a discharge for the purpose of enhancing employment opportunities.

2.  The applicant's contention he did not receive counseling does not justify the misconduct for which he was convicted.

3.  The applicant contends he reached out for assistance (request for compassionate reassignment) and he did not receive any assistance from his chain of command.  However, it appears he requested a compassionate reassignment after committing all but one of his drug offenses.

4.  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.

5.  The applicant's record of service included one general court-martial conviction for serious drug offenses.  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.

6.  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)                                         AR20100011650



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ABCMR Record of Proceedings (cont)                                         AR20100011650



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