IN THE CASE OF:
BOARD DATE: 10 April 2012
DOCKET NUMBER: AR20110016611
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 his dishonorable discharge be upgraded to a general discharge.
2. He states he needs his discharge upgraded so he may receive medical treatment from the Department of Veterans Affairs due to being exposed to tuberculosis while he was in the military.
3. He provides no additional evidence in support of this application.
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. His record shows he enlisted in the Regular Army on 4 June 1982. The highest rank/pay grade he attained while serving on active duty was specialist four/E-4. However, he held the rank/pay grade of private/E-1 at the time of separation.
3. General Court-Martial Order Number 9 published by Headquarters, U.S. Army Infantry Center and Fort Benning, GA, dated 20 March 1987, shows that on 19 February 1987 the applicant was found guilty at a general court-martial of two specifications of violating Article 112a of the Uniform Code for Military Justice (UCMJ) by:
* wrongfully introducing cocaine onto a military installation on 16 October 1986
* wrongfully distributing cocaine on 18 October 1986
4. On 19 February 1987, the following sentence was adjudged:
* reduction to the lowest enlisted grade
* confinement for 26 months
* a forfeiture of all pay and allowances
* dishonorable discharge
5. On 20 March 1987, only so much of the sentence as provided for a dishonorable discharge, confinement for 25 months, a forfeiture of all pay and allowances, and reduction to the grade of E-1 were approved and, except for the dishonorable discharge, was ordered to be executed.
6. On 29 May 1987, the U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.
7. General Court-Martial Order Number 224 published by U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, KS, dated 12 August 1988, shows the remainder of the applicant's sentence had been finally affirmed and the appropriate authority ordered the dishonorable discharge duly executed.
8. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 29 August 1988 under the provisions of paragraph 3-10, Army Regulation 635-200 (Personnel Separations), due to conviction by a court-martial. This form also shows his character of service as "Dishonorable."
9. References:
a. 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.
b. Army Regulation 635-200 provides that an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a special or general court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed.
c. 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 trial by court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations. Therefore, there is no legal basis for granting the applicant's request for relief.
2. The available evidence failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated and his discharge upgraded.
3. The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for medical benefits.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20110016611
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20110016611
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090006562
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. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted. Each case is individually reviewed and a determination is made based on its merits when an applicant requests an upgrade of...
ARMY | BCMR | CY2013 | 20130019253
The applicant states that his court-martial order directed that all rights, privileges and property be restored to him after his confinement and he now desires an honorable discharge. On 22 December 1993, General Court-Martial Order Number 451 issued by the United States Disciplinary Barracks at Fort Leavenworth, Kansas set aside the finding of guilty of specification I of Charge II (failure to go to place of duty) and directed that all rights, privileges and property of which the applicant...
ARMY | BCMR | CY2014 | 20140004384
The applicant requests his dishonorable discharge be upgraded to an under other than honorable conditions discharge. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Separations), chapter 3, by reason of court-martial, with a dishonorable discharge. His conviction, confinement, and discharge were effected in accordance with applicable laws and...
ARMY | BCMR | CY2010 | 20100029172
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. 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. The evidence of record shows that...
ARMY | BCMR | CY2014 | 20140002241
IN THE CASE OF: BOARD DATE: 11 September 2014 DOCKET NUMBER: AR20140002241 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted.
ARMY | BCMR | CY2014 | 20140005871
Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board is not empowered to set aside a conviction. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based...
ARMY | BCMR | CY2010 | 20100013343
He was discharged accordingly on 16 October 1987 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-10, as a result of a court-martial, with a dishonorable discharge. Army Regulation 635-200, paragraph 3-7b, further provided a general discharge was a separation from the Army under honorable conditions. The evidence of record shows his offenses warranted this punishment.
ARMY | BCMR | CY2009 | 20090007023
With prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army for 4 years and entered on active duty on 15 March 1988. The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted. The applicant was given a dishonorable discharge pursuant to an approved sentence of a GCM.
ARMY | BCMR | CY2014 | 20140004199
He served in Germany from 30 January 1982 through 22 November 1985. Accordingly, he was discharged in pay grade E-1 on 24 March 1988, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Separations), chapter 3, As a result of court-martial. He provided copies of the following: * Nurse Aide Registry Document, dated 16 March 2012, issued for his successful completion of an approved State of Michigan nurse aide training course * Certificate of Achievement, dated...
ARMY | BCMR | CY2010 | 20100017096
The applicant requests, in effect, that his bad conduct discharge (BCD) be upgraded to a general discharge. 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.