IN THE CASE OF:
BOARD DATE: 14 June 2011
DOCKET NUMBER: AR20100029234
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. The applicant states:
* he was young and made a mistake
* he is unable to receive a passport or Department of Veterans Affairs (VA) benefits
3. The applicant provides no additional 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 applicants 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 applicants 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 31 July 1980, at the age
of 17 and he was age 21 at the time of his offenses. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91B (Medical Specialist). The highest rank/grade he attained while serving on active duty was specialist four/E-4.
3. On 14 September 1983, a general court-martial found the applicant guilty of violating Article 134 of the Uniform Code of Military Justice (UCMJ) by wrongfully possessing and distributing marijuana on three separate occasions.
4. The resulting sentence was a reduction to private/E-1, a forfeiture of all pay and allowances, confinement at hard labor for 27 months, and a dishonorable discharge.
5. On 14 May 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.
6. On 20 December 1984, the applicant was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), by reason of court-martial with a dishonorable discharge. The DD Form 214 (Certificate of Release or Discharge from Active Duty) that he was issued shows he completed 2 years, 10 months, and 19 days of creditable active military service and he had 540 days of lost time due to being in confinement.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides 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.
8. 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 request for an upgrade of his dishonorable discharge has been carefully considered; however, there is insufficient evidence to support this request.
2. Records show the applicant was 21 years of age at the time of his offenses. There is no evidence which indicates the applicant was any less mature than Soldiers of the same age who successfully completed military service.
3. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veteran's benefits. Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA or the State Department concerning his passport.
4. By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.
5. Given the gravity of the offenses resulting in his court-martial conviction and dishonorable discharge, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his 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) AR20100029234
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20100029234
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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