IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100026271 


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 his dishonorable discharge be upgraded to an honorable discharge.

2.  He states he would like his dishonorable discharge changed.

3.  He provides a letter from a medical specialist.

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 23 April 1969.

3.  On 11 June 1979, he was found guilty pursuant to his pleas by a general court-martial of violating a lawful general regulation by wrongfully possessing a prohibited weapon; wrongfully selling a habit-forming drug (heroin); and wrongfully possessing 10 grams, more or less, of a habit-forming narcotic drug (heroin).  He was sentenced to a dishonorable discharge, confinement at hard labor for 15 years, a forfeiture of $300.00 pay per month for 180 months, and a reduction to the lowest enlisted grade.

4.  On 17 August 1979, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement at hard labor for 33 months, a forfeiture of $300.00 pay per month for 180 months, and a reduction to the grade of private/E-1.

5.  On 15 November 1979, the unapplied portion of the sentence of $300.00 pay per month for 180 months (as in excess of forfeiture of $120.00 pay) was suspended effective 26 August 1979 based on the following conditions:

* that the accused continued satisfactory performance of duty with the Food Service Division, U.S. Disciplinary Barracks, or elsewhere as assigned
* that the accused should not violate the rules of the U.S. Disciplinary Barracks as may be published from time to time
* that the accused should not violate the Uniform Code of Military Justice until such time as the sentence was ordered into execution at which time, unless the suspension was sooner vacated, the suspended portion shall be remitted without further action

6.  On 31 March 1980, the U.S. Army Court of Military Review affirmed the findings of guilty.

7.  On 31 July 1980, his dishonorable discharge was ordered executed in General Court-Martial Order Number 458, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth.

8.  He was discharged on 5 September 1980 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of court-martial.  He completed a total of 2 years, 3 months, and 7 days of creditable active service during the period under review with 533 days of lost time.

9.  He provided a letter, dated 12 August 2010, from a medical specialist.  The medical specialist stated the applicant had no recent behavioral problems and had been compliant with all of his medication and treatment plans.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-10 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.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

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.  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 applicant's 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 his discharge appropriately characterizes the misconduct for which he was convicted.

2.  His service record shows he was convicted by a general court-martial of violating a lawful general regulation by wrongfully possessing a prohibited weapon; wrongfully selling a habit-forming drug (heroin); and wrongfully possessing 10 grams, more or less, of a habit-forming narcotic drug (heroin).

3.  His statement from the medical specialist is acknowledged; however, this document is not sufficiently mitigating to warrant relief in this case.

4.  Based on the seriousness of the misconduct for which he was convicted, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the applicant's 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 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)                                         AR20100026271



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ABCMR Record of Proceedings (cont)                                         AR20100026271



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