BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100029172 


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.

2.  He states that he is requesting his dishonorable discharge be upgraded to the minimum required to receive Department of Veterans Affairs (VA) health care and benefits.  Due to his discharge he is unable to receive the needed care for his service-connected conditions.  

3.  He provides a copy of his DD Form 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's military records show he enlisted in the Delayed Entry Program in November 1987.  He enlisted in the Regular Army, in pay grade E-1, on 12 January 1988.  He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman).  He was advanced to pay grade E-3 on 1 February 1989.

3.  On 18 August 1989, he was given a physical profile with a PULHES profile of 113111 for mechanical low back pain.  A Medical Evaluation Board (MEB) was recommended as he was unfit for duty secondary to an injury sustained in January 1989 in a fall from a rope.  

4.  On 19 October 1989, an MEB convened and considered the applicant's conditions of mechanical low back pain; chronic paresthesias of the great and second toe on the left foot, status post first degree frostbite; and Type 2A hyperlipoproteinmia.  The MEB recommended he be referred to a Physical Evaluation Board (PEB).  The board noted the applicant did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The findings and recommendations of the MEB were approved on 20 October 1989.  On 24 October 1989, the applicant stated that he did not agree with the findings and recommendations of the MEB.  His appeal was considered and the original findings and recommendation were confirmed.

5.  On 24 October 1989, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company C, 2nd Battalion, 87th Infantry, 2nd Brigade, 10th Mountain Division, Fort Drum, NY.  He was charged with one specification each of the following:

* Wrongfully distributing approximately 1.41 grams of cocaine on or about 17 August 1989
* Wrongfully distributing approximately 2.32 grams of cocaine on or about 28 August 1989
* Wrongfully distributing approximately 1.73 grams of cocaine on or about 16 September 1989

6.  On 3 November 1989, an informal PEB convened and considered the applicant's disabilities.  The PEB determined the chronic paresthesias of the great and second toe on the left foot, status post first degree frostbite, and Type 2A hyperlipoproteinmia were not unfitting and not ratable.  The PEB concluded that the applicant's chronic low back pain prevented his satisfactory performance 

of duty of his grade and primary MOS.  The PEB recommended a combined rating of 10 percent and separation with severance pay, if otherwise qualified.  

7.  He did not concur with the findings and recommendations of the PEB and requested a formal hearing.  There is no available evidence showing a formal PEB convened.

8.  On 15 November 1989, trial counsel and defense counsel executed a stipulation of fact with the expressed consent of the applicant, that the stipulated facts were true and admissible in evidence against the applicant.

9.  On 11 December 1989, the Staff Judge Advocate recommended the applicant be tried by general court-martial.  On the same day, the convening authority referred the charges to a general court-martial.

10.  On 13 December 1989, after consulting with counsel, the applicant offered to plead guilty.

11.  On 14 December 1989, he was convicted by a general court-martial of one specification each of the following:

* Wrongfully distributing approximately 1.41 grams of cocaine on or about 17 August 1989
* Wrongfully distributing approximately 2.32 grams of cocaine on or about 28 August 1989
* Wrongfully distributing approximately 1.73 grams of cocaine on or about 16 September 1989

He was sentenced to confinement for 6 years, a forfeiture of all pay and allowances, a reduction to pay grade E-1, and to be discharged with a dishonorable discharge.

12.  On 10 April 1990, the convening authority approved 25 months confinement, total forfeitures, reduction to pay grade E-1, and a dishonorable discharge and except for the dishonorable discharge ordered the sentence duly executed.

13.  On 13 August 1990, the U.S. Army Court of Military Review approved the findings of guilty and affirmed the sentence.

14.  On 23 January 1991, the U.S. Army Court of Military Appeals denied the applicant a review of his case.  

15.  General Court-Martial Order Number 258, dated 2 August 1991, ordered the applicant’s dishonorable discharge duly executed.

16.  Accordingly, he was discharged from active duty in pay grade E-1 on 15 August 1991, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, as a result of a court-martial, and issued a dishonorable discharge.  He was credited with 1 year, 11 months, and 2 days of net active service and time lost from 14 December 1989 to on or about 15 August 1991.

17.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provided that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

18.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

19.  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 Army Board for Correction of Military Records 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.

20.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

21.  Army Regulation 635-40, then in effect, established the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or 

rating.  Paragraph 4-1(a) stated that if a Soldier is charged with an offense under 
the Uniform Code of Military Justice (UCMJ) which could result in a punitive discharge they may not continue disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 14 December 1989, he was convicted by a general court-martial of one specification each of the wrongful distribution of cocaine on three different dates.  His subordinate commanders and battalion commander recommended he be tried by court-martial.  On 15 August 1991, he was discharged pursuant to the sentence of a general court-martial with a dishonorable discharge.  His disability processing had ceased when he was charged with the UCMJ offenses.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  He has provided no evidence to show that his discharge is unjust.  There is no error or injustice apparent in his record.  There is also no evidence that his treatment during his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general or fully honorable discharge.  He was properly discharged in accordance with pertinent regulations, with due process, with no violation of his rights.  

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.  Given his offenses 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.

5.  His desire to have his dishonorable discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA for service-connected conditions is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.


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)                                         AR20100029172





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ABCMR Record of Proceedings (cont)                                         AR20100029172



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