IN THE CASE OF:	

		BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100024540 


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.

2.  The applicant states:

* His service record includes an Army Service Ribbon, National Defense Service Medal, and Army Achievement Medal
* After experiencing combat in Panama and Operation Desert Storm, he experienced sleep disorders and traumatic stress
* His drug use, as he looks back now, was a result of his combat experiences
* In the early 1990's there was no understanding or tolerance of this
* Today, he believes the effects of combat are better understood and treatment of veterans and discharges take this into consideration
* He is asking for his discharge to be changed to reflect his record of service and not his reaction to challenges he faced as a Soldier
* He would like to become a veteran with full benefits for his service
* He went into the Army with high hopes for success and looked forward to the benefits accorded to veterans
* His dishonorable discharge was the result of his drug use
* He turned to drugs to try to overcome his emotional disorders     

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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.  He enlisted in the Regular Army on 1 August 1989 for a period of 4 years and 14 weeks.  He completed his training and was awarded military occupational specialty 11B (Infantryman).  He attained the rank of specialist four.  

3.  On 24 January 1992, he received a letter of reprimand for drunk driving.

4.  On 15 April 1992, he was convicted by a general court-martial of using LSD [lysergic acid diethylamide] and cocaine and distributing LSD.  He was sentenced to be reduced to pay grade E-1, to be confined for 28 months, to forfeit all pay and allowances, and to be discharged from the service with a dishonorable discharge.  On 20 July 1992, the convening authority approved the sentence.

5.  The decision of the U.S. Army Court of Military Review is not available.  The U.S. Court of Military Appeals denied his petition for review on 22 June 1993.  On 17 August 1993, the convening authority ordered the dishonorable discharge to be executed.

6.  He was discharged with a dishonorable discharge on 23 December 1993 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 2 years, 8 months, and 5 days of creditable active service with lost time from 15 April 1992 to 23 December 1993.  His DD Form 214 shows the Army Service Ribbon, National Defense Service Medal, and Army Achievement Medal as authorized awards.

7.  There is no evidence showing he served in Panama or in Southwest Asia in support of Operation Desert Storm.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record) is blank. 

8.  His name does not appear on the Defense Manpower Desert Shield/Desert Storm database.  The Defense Manpower Data Center compiled the Operations Desert Shield/Desert Storm Data Base.  The primary Operations Desert Shield/Desert Storm file contains one record for each active duty member who participated in theater between 2 August 1990 and 31 July 1991 and one record for each Reserve and National Guard member or retiree who was activated or federalized in response to Operations Desert Shield/Desert Storm.  

9.  There is no evidence showing he was diagnosed with any mental conditions prior to his discharge. 

10.  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.

11.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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.

13.  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.  He contends after experiencing combat in Panama and Operation Desert Storm he experienced sleep disorders and traumatic stress.  He also contends his drug use was the result of his combat experiences.  However, there is no evidence in his record showing he served in Panama or in Southwest Asia in support of Operation Desert Storm.   

2.  Other than his statement, there is no evidence showing he was having mental problems in 1992/1993 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.    

3.  The ABCMR does not correct records solely for the purpose of making the applicant eligible for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

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.  His record of service included a letter of reprimand for drunk driving, one general court-martial conviction for serious drug offenses (LSD and cocaine use and LSD distribution), and lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgraded 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)                                         AR20100024540



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ABCMR Record of Proceedings (cont)                                         AR20100024540



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