IN THE CASE OF:	  

		BOARD DATE:	    6 January 2011

		DOCKET NUMBER:  AR20100017434 


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 under honorable conditions.

2.  The applicant states he was only 16 1/2 years old when he enlisted in the Army and he was easily influenced because he wanted others to like him.  He adds that he was introduced to drugs and alcohol by Soldiers returning from Vietnam.

   a.  He states he developed a bad drug and alcohol habit.  He adds he requested help for his drug and alcohol problem, but never received any type of treatment while in the military.

   b.  He states that after he was released from Fort Leavenworth, he was a full blown drug addict and alcoholic for over 15 years.  He adds that he got "clean and sober" on 4 January 2003, returned to school, and he is now enrolled in a master's program in psychology for marriage family therapy.

   c.  He states he is now a law-abiding citizen and attends school full-time.  He also works at a crisis center for people who are suffering from mental health problems and substance abuse problems.  He adds he has dedicated his life to helping people make positive changes in their lives.

   d.  He concludes by stating he believes he has changed his life and suffered from his mistakes and requests upgrade of his discharge.

3.  The applicant provides a copy of his disabled student verification, nine letters, nine certificates, and copies of documents from his military personnel records that include his enlistment and reenlistment contracts, personnel qualification record, two records of non-judicial punishment, court-martial orders, and two
DD Forms 214 (Certificate of Release or Discharge from Active Duty).

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 (RA) for a period of 4 years on      9 February 1976.  His enlistment contract shows he was 17 years of age.  Upon completion of training he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  A DD Form 214 shows the applicant was honorably discharged on 27 August 1979 for the purpose of immediate reenlistment in the RA.  At the time he had completed 3 years, 6 months, and 19 days of net active service this period and
1 year of foreign service in Korea.

4.  The applicant reenlisted in the RA for a period of 4 years on 28 August 1979. He completed training and was awarded MOS 75B (Personnel Administrative Specialist) on 18 August 1981.

5.  Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, GA, General Court-Martial Order Number 3, dated 16 January 1981, shows the applicant was tried at a general court-martial in December 1980.

   a.  He pled guilty to and was found guilty of the charge and three specifications of, on or about 6 September 1980, wrongfully having in his possession marijuana; wrongfully selling marijuana; and wrongfully introducing marijuana into a military post for the purpose of sale.

   b.  On 4 December 1980, he was sentenced to reduction to private (E-1), forfeiture of $300.00 pay per month for 12 months, and confinement at hard labor for one year.  (Two previous convictions considered.)

   c.  On 16 January 1981, the convening authority approved only so much of the sentence that provided for reduction to private (E-1), forfeiture of $300.00 pay per month for nine months, and confinement at hard labor for nine months and ordered the sentence duly executed.

6.  Headquarters, U.S. Army Retraining Brigade, Fort Riley, KS, General Court-Martial Order Number 84, dated 27 April 1981, suspended the unexecuted portion of the approved sentence to confinement at hard labor for nine months until 18 August 1981, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action.

7.  Headquarters, U.S. Army Retraining Brigade, Fort Riley, KS, General Court-Martial Order Number 115, dated 9 June 1981, suspended the unexecuted portion of the approved, modified sentence of forfeiture of $300.00 pay per month for nine months until 18 August 1981, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action.

8.  The applicant advanced through the ranks and was promoted to specialist five/pay grade E-5 on 4 July 1982.

9.  Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, CO, General Court-Martial Order Number 26, dated 2 April 1984, shows the applicant was tried at a general court-martial in March 1984.

   a.  He pled guilty to and he was found guilty of Charge I and the specification of, on 12 October 1983, attempting to wrongfully distribute a quarter of an ounce, more or less, of cocaine.
   
   b.  He pled not guilty to Charge II and the specification of being absent without authority from his unit from 30 November 1983 to 6 January 1984.  The Government motion to dismiss was granted by the military judge.
   
   c.  He pled not guilty to Charge III and the specification of stealing $760.00 in U.S. currency, the property of the U.S. Government, on 12 October 1983.  The Government motion to dismiss was granted by the military judge.

   d.  He pled guilty to and he was found guilty of Charge IV and the specifications of:

       (1)  wrongfully distributing 1.981 grams, more or less, of cocaine, on
8 September 1983 and

       (2)  wrongfully distributing 1.967 grams, more or less, of cocaine, on
6 October 1983.

   e.  On 5 March 1984, he was sentenced to reduction to private (E-1), forfeiture of all pay and allowances, confinement at hard labor for five years, and a dishonorable discharge from the service.  (One previous conviction considered.)

   f.  On 2 April 1984, the convening authority approved the sentence but suspended confinement in excess of four years, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence to confinement would be remitted without further action.  The convening authority also directed that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

10.  On 29 March 1985, the United States Army Court of Military Review considered the record of trial in the applicant's case.

   a.  At issue before the Court was whether the military judge erred by considering, during sentencing, portions of a record of trial from a prior general court-martial of the applicant.

       (1)  The military judge [in the present case] found the portions of the record of trial reflecting the applicant's testimony concerning his remorse and the military judge's admonition to the applicant [in his previous case] were relevant and proper aggravating circumstances related to the offenses for which the applicant had been convicted.  The Court agreed and opined, "[d]espite such knowledge, and despite the opportunity for a 'second chance,' [applicant] again committed drug related offenses." 

       (2)  The Court also opined, "[t]his information from [applicant's] prior trial constituted circumstantial evidence of [applicant's] attitude toward his most recent crimes and as such had direct bearing upon his rehabilitative potential.  The relevance of this information in determining [applicant's] rehabilitative potential cannot be overemphasized.  Admittedly, knowledge of [applicant's] prior conviction and the sentence received gives some indication of the rehabilitative measures previously tried on [applicant]."


       (3)  The Court found the matters were admissible to aid the trial court in determining an appropriate sentence in the applicant's case.  With respect to whether the military judge should have excluded this evidence, the Court found the applicant failed to meet the burden of showing that the judge abused his discretion.

   b.  Accordingly, the findings of guilty and the sentence were affirmed and the applicant was advised of the decision.

11.  On 13 May 1985, the applicant petitioned the United States Court of Military Appeals for review of his conviction.

12.  On 3 June 1985, the Army Clemency Board, by action of the Secretary of the Army on 23 May 1985, announced the applicant's clemency and parole were disapproved.

13.  The United States Court of Military Appeals denied the applicant's petition for review on 6 December 1985.

14.  Headquarters, United States Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, General Court-Martial Order Number 447, dated 30 December 1985, confirmed that in the general court-martial case of the applicant, findings and sentence were finally affirmed.  The provisions of Article 71(c) having been complied with, the dishonorable discharge was ordered executed.

15.  The applicant's DD Form 214 shows he was dishonorably discharged on
21 February 1986, under the provisions of Army Regulation 635-200, paragraph 3-10, as a result of court-martial, other.  At the time he had completed 4 years and 3 days of net active service this period and 3 years, 6 months, and 19 days of total prior active service.  Item 29 (Dates of Time Lost During This Period) shows he had time lost under Title 10, U.S. Code, section 972, from 4 December 1980 through 15 April 1981 and from 13 January 1984 through 21 February 1986 (after normal expiration of term of service).

16.  In support of his request, the applicant provides the following documents:

   a.  Victor Valley College, Disabled Students Programs and Services, Disability Verification, dated 16 June 2004, that shows the applicant has been diagnosed with severe bipolar without psychotic features and arthritis in the left knee and that he may be eligible for accommodations and support services as a result of his disabilities.
   b. Nine letters of recognition from supervisors, teachers, and co-workers attesting to the applicant's personal integrity, his dedication as both an employee and a student, and capabilities as a counselor in the field of drug and alcohol.  Several of the letters also recommend him for employment in the field of drug and alcohol.

   c.  Nine certificates that show the applicant completed training and instruction on counseling in the field of alcohol, drug, and gambling; received the degree of Associate of Arts in Human Services from San Bernardino Valley College in May 2007; received the degree of Bachelor of Arts in Sociology in August 2009;  was awarded the credential of a Certified Addictions Treatment Counselor in February 2009; and was recognized for his outstanding service as a volunteer at the Federal Correctional Complex, Victorville, CA in August 2009.

17.  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.

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3 (Types and Characterization or Discharge), section IV (Dishonorable and Bad Conduct Discharge), 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 the appellate review and after such affirmed sentence has been ordered duly executed.

   b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his dishonorable discharge should be upgraded to a general discharge under honorable conditions because he was introduced to drugs and alcohol by Soldiers returning from Vietnam; he developed a bad drug and alcohol habit; and he requested help for his drug and alcohol problem, but the Army did not provide him any type of rehabilitation for his problem.  He also contends he is now "clean and sober," a law-abiding citizen, and works in his community to help others with mental health and substance abuse problems.

   a.  There is no evidence of record, and the applicant provides insufficient evidence, that he was introduced to drugs and alcohol by Soldiers returning from Vietnam, which caused him to develop a drug and alcohol habit.

   b.  The evidence of record shows the applicant was convicted at a general court-martial of wrongfully having in his possession marijuana; wrongfully selling marijuana; and wrongfully introducing marijuana into a military post for the purpose of sale.  The evidence of record also shows the military judge in the applicant's trial admonished him that he was being given a second chance, and his sentence was subsequently reduced.  Nonetheless, the applicant again committed drug-related offenses and was found guilty of attempting to wrongfully distribute a quarter of an ounce of cocaine and wrongfully distributing cocaine (on two separate occasions).  Thus, the evidence of record refutes the applicant's contention that the Army did not provide him any type of rehabilitation for his problem.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

3.  The applicant's post-service conduct, educational achievements, and work in his community were considered; however, they are not sufficiently mitigating to warrant relief.

4.  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.  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.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, there is no basis for granting the requested relief.


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)                                         AR20100017434



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ABCMR Record of Proceedings (cont)                                         AR20100017434



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