BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100021583 


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 an upgrade of his dishonorable discharge to a general discharge.

2.  The applicant states he was young and immature at the time.  He hung out with the wrong crowd with a close friend and he was involved with drugs.  He never had any disciplinary problems prior to this incident and his service was exemplary.  He was also in emotional distress at the time at the time due to the birth of his child and the breakup with the mother of his child.  He was very angry and felt no one cared about him.  He tried to resolve the drug issue with investigation officials but they were only concerned with getting more people sent to jail.  He was ultimately discharged with a dishonorable discharge which has affected his employment, financial, and educational opportunities for years.  He made a mistake, but he learned from his mistake.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's discharge be upgraded. 

2.  Counsel, in effect, that the discharge should be upgraded. 

3.  Counsel did not provide any evidence.

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 records show he was born on 2 April 1970 and enlisted in the Regular Army for a period of 4 years on 25 October 1989 at 19 years and 6 months of age.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 76V (Automated Logistics Specialist).

3.  The applicant's records also show he served in Germany from 16 March 1990 to 17 April 1992.  He was awarded the Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars.

4.  His records further show he was promoted through the ranks to specialist/E-4 and he was assigned to the 584th Maintenance Company, 561st Combat Support Battalion, Fort Campbell, KY.

5.  On 16 July 1993, he pled guilty at and was convicted by a general court-martial to one specification of wrongfully distributing cocaine on or about 16 January 1993, one specification of soliciting another to distributing cocaine on or about 10 March 1993, and one specification of wrongfully carrying a concealed weapon on or about 11 March 1993.  The court sentenced him to a reduction to private/E-1, a forfeiture of all pay and allowances, confinement at hard labor for 36 months, and a dishonorable discharge.

6.  On 17 September 1993, the convening authority approved the sentence except for confinement exceeding 20 months.  Additionally, except for that part of the sentence extending to the dishonorable discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7.  On 10 February 1994, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the approved sentence.

8.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General Court-Martial Order Number 193, dated 26 July 1994, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge sentence executed.

9.  The applicant was discharged from the Army on 20 October 1994.  His DD Form 214 shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a dishonorable discharge.  This document further shows he completed a total of 3 years, 8 months, and 21 days of creditable military service.  He had lost time from 16 July 1993 to 20 October 1994.

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.

10.  Army Regulation 635-200 governs the separation of enlisted personnel.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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.

12.  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 and that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his dishonorable discharge should be upgraded.

2.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  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.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

4.  The evidence of record shows the applicant was 19 years of age at the time of his enlistment and nearly 23 years of age at the time of committing his serious offenses.  However there is no evidence that shows he was any less mature than other Soldiers of the same age who honorably completed their terms of service or that his actions were a result of his age.

5.  His contentions regarding his youth, immaturity, and emotional stress are noted.  However, they are not sufficiently mitigating to grant him the requested relief.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20100021583



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ABCMR Record of Proceedings (cont)                                         AR20100021583



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