BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110000131 


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 made a mistake and has paid his dues.  He regrets what he did and he deserves to have a second chance.

3.  He provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 Regular Army (RA), in pay grade E-1, on 1 February 1984, for 3 years, with prior Army National Guard enlisted service.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  He was advanced to pay grade E-4 on 1 December 1984.  He was honorably discharged on 11 August 1986 for the purpose of immediate reenlistment.  He reenlisted in the RA on 12 August 1986 for 4 years.

3.  On 14 April 1988, he accepted punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty on 17 March 1988.

4.  On 7 March 1989, he was convicted by a general court-martial of one specification each of the following:

* Wrongfully distributing 31.7 grams of marijuana on 21 October 1988
* Wrongfully distributing 32.1 grams of marijuana on 24 October 1988
* Wrongfully distributing 96.4 grams of marijuana on 2 November 1988
* Wrongfully possessing 003.5 grams of marijuana on 3 November 1988
* Wrongfully possessing 3.5 grams of cocaine on 5 November 1988

5.  He was sentenced to confinement for 7 years, a forfeiture of $699.00 pay for 84 months, reduction to pay grade E-1, and the issuance of a dishonorable discharge.

6.  On 31 March 1989, the convening authority approved the sentence, except for the sentence to a dishonorable discharge, and suspended the confinement in excess of 6 years for 2 years, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted and ordered the sentence duly executed.  

7.  On an unknown date, the U.S. Army Court of Military Review approved the findings of guilty and affirmed the sentence.

8.  There is no evidence he petitioned the U.S. Army Court of Military Appeals for a review of his case.  

9.  General Court-Martial Order Number 42, dated 19 March 1990, stated the sentence to a dishonorable discharge, a forfeiture of $699.00 pay for 84 months, confinement for 7 years (confinement in excess of 6 years was suspended for 2 years, effective 31 March 1989, with provisions for automatic remission), and reduction to pay grade E-1 were finally affirmed and the dishonorable discharge was ordered duly executed.

10.  He was discharged from active duty in pay grade E-1 on 6 April 1990, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-10, as a result of a court-martial, and the issuance of a dishonorable discharge.  He was credited with completing 5 years, 1 month, and 6 days of net active service and he had lost time from 7 March 1989 to 6 April 1990 during the period under review.

11.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 3 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.

12.  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.

13.  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.  

14.  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 evidence of record shows the applicant was convicted by a general court-martial of several specifications of wrongful distribution of marijuana and possession of marijuana on multiple dates between October and November 1988.  He was also charged with wrongfully possessing cocaine. 

2.  On 6 April 1990, he was discharged pursuant to the sentence of a general court-martial with a dishonorable discharge.  

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.
4.  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 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.  

5.  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.

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)                                         AR20110000131



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ABCMR Record of Proceedings (cont)                                         AR20110000131



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