BOARD DATE:	  11 October 2011

		DOCKET NUMBER:  AR20110004595 


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, in effect, his dishonorable discharge be upgraded.

2.  The applicant states, in effect, he: 

* was wrongfully charged and convicted 
* underwent 3 or 4 raids on his apartment; however, drugs were never found
* noncommissioned officers expected him to pick up drugs for them and they would cover for him, to include urinalysis testing
* was never caught with drugs or marked money

3.  The applicant provides a VA Form 21-4138 (Department of Veterans Affairs Statement in Support of a Claim).

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 last enlistment in the Army began on 21 December 1979.  The highest rank/grade he attained while serving on active duty was specialist/E-4.

3.  Special Court-Martial Order 30, dated 5 September 1980, shows the applicant was tried and found guilty of disobeying an order and using disrespectful language towards a superior noncommissioned officer.  He was sentenced to reduction in rank and forfeiture of pay.

4.  General Court-Martial Order 37, dated 22 May 1981, shows the applicant was tried and found guilty of:

* resisting lawful apprehension
* assaulting a military police officer
* wrongful appropriation
* possessing, selling, and transferring heroin on two occasions
* wrongful possession of diazepam

5.  The applicant appealed his conviction; however, on 25 February 1982, the U.S. Army Court of Military Review affirmed the findings and sentence.

6.  On 21 November 1983, the U.S. Court of Military Appeals affirmed the decision of the U.S. Army Court of Military Review.

7.  General Court-Martial Order 194, dated 19 March 1984, shows the applicant's court-martial was affirmed and the convening authority ordered the discharge executed.
 
8.  On 11 April 1984, the applicant was dishonorably discharged.  He was credited with 11 months and 17 days of active military service for this period of service.  His DD Form 214 confirms his service was characterized as "dishonorable" and the narrative reason for his separation was "as a result of court-martial."

9.  The applicant provided a VA Form 21-4138 containing self-authored statements surrounding his conviction.

10.  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.

11.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.  

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded because he was wrongfully charged and convicted was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant's record reveals he committed serious crimes which rendered him triable by court-martial for offenses punishable by a bad conduct or dishonorable discharge.  The crimes culminated in his trial by general court-martial which was warranted by the gravity of the offenses charged.  His 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.  By law, any redress by this Board of the finality of a court-martial conviction 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.

4.  After review of the applicant’s available record of service, it was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offenses for which he was convicted, it is also clear that his service was not satisfactory, thus did not meet the criterion for discharge under either general or honorable conditions.  Therefore, there is no basis for a grant of clemency in the form of an upgraded 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 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)                                         AR20110004595



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ABCMR Record of Proceedings (cont)                                         AR20110004595



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