BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110002506 


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:

* he would like his discharge upgraded due to the passage of time
* he was 18 years old and he was young and impressionable which resulted in his making bad choices
* he did not think about the consequences of his actions
* he has two children of his own and he is teaching them right from wrong
* other than minor traffic violations he has been a model citizen and wants to be able to have all his civil rights restored including the right to vote
* he wants all charges removed from his record 
* since leaving the Army, his time in the correctional brigade has been a constant reminder that it is not the life he wanted
* he feels that to hold this (discharge) against him for his entire life in itself is an unjust act

3.  The applicant provides no additional documents.

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 27 May 1988.  He completed training and he was awarded military occupational specialty 31K (combat signaler).

3.  On 17 January 1990, the applicant appeared before a general court-martial at Fort Polk, LA.  He was charged with:

* one specification each of wrongfully distributing lysergic acid diethylamide (LSD) and methylene-dioxymethamphetamine (MDMA) between 1 March and 29 October 1989
* one specification each of wrongfully using LSD and MDMA between
1 March and 29 October 1989
* one specification of wrongfully possessing approximately 26 hits of LSD between 1 March and 29 October 1989

4.  General Court-Martial Order Number 10, issued by Headquarters, 5th Infantry Division (Mechanized), Fort Polk, LA, dated 15 February 1990, shows the applicant was convicted of all specifications.  Sentence was adjudged on
17 January 1990 and he was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, confinement for 2 years, and reduction to the rank/grade of private/(PV1)/E-1.  The court-martial convening authority approved the sentence and, except for the part of the sentence extending to the dishonorable discharge, ordered it to be executed.

5.  On 27 April 1970, the U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the findings of guilty and the sentence were affirmed.

6.  General Court-Martial Order Number 573, issued by the U.S. Army Correctional Brigade, Fort Riley, KS, dated 19 September 1990, noted that the applicant's sentence has been finally affirmed.  Therefore, Article 71(c) having been complied with, his dishonorable discharge was ordered to be duly executed.
7.  On 9 November 1990, the applicant was dishonorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV as a result of court-martial.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in the rank/grade of PV1/E-1.  It also shows he completed 1 year, 8 months, and 18 days of creditable active service with time lost from 17 January 1990 through 8 November 1990 for a total of 296 days due to military confinement.

8.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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

	b.  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.

	c.  Army Regulation 635-200 provides that an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

	d.  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 contention that his discharge should be upgraded because he was young at the time of his service was carefully considered and found to be without merit. 

2.  Pursuant to the applicant's guilty pleas, he was tried and convicted of wrongfully distributing and using LSD and MDMA and wrongfully possessing approximately 26 hits of LSD.  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 characterizes the misconduct for which the applicant was convicted.

3.  The Army does not have nor has it ever had a policy that provides for the upgrade of a discharge based on the passage of time.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation process.  Therefore, the applicant's discharge was proper and equitable and it accurately reflects his overall record of service.  His record shows he was 18 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief in this case.

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 the applicant's undistinguished record of service 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 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)                                         AR20110002506



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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