BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110020995 


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:

	a.  his dismissal be upgraded to honorable; and

	b.  his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show four awards of the Army Achievement Medal (AAM) instead of six awards.

2.  The applicant states:

* His court-martial conviction was based on a one time drug use which he pled guilty to
* Since 2002 he has worked on his sobriety and is now sober for 8 solid years
* His service prior to this unfortunate event in his life was unblemished with many commendations and very strong performances as indicated in his Officer Evaluation Reports
* His DD Form 214 indicates 6 awards of the AAM but he is only aware of 
      4 awards
* He realizes now he was sick and needed help
* He has sought that help over the last 9 years
* He would like to start working again
* For the past 10 years he has been retired and lived off the kindness of others 

3.  The applicant provides his DD Form 214.

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 was appointed a second lieutenant in the U.S. Army Reserve on 28 July 1988 and he entered active duty on 12 June 1989.  He was appointed a second lieutenant in the Regular Army (RA) on 14 December 1990.  He served as a military intelligence officer and he was promoted to captain on 1 January 1994. 

3.  On 23 October 1998, he was convicted by a general court-martial of attempting to distribute cocaine, using cocaine, and wrongfully appropriating a motor vehicle.  He was sentenced to be confined for 12 months, forfeiture of all pay and allowances (FAPA), and a dismissal.  On 16 March 1999, the convening authority approved only so much of the sentence as provided for confinement for 6 months, FAPA, and a dismissal. 

4.  He was placed on excess leave on 11 November 1998.

5.  On 19 October 1999, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 12 April 2000, the U.S. Court of Appeals for the Armed Forces denied his petition for a grant of review.

6.  On 4 January 2001, the Assistant Secretary of the Army ordered the sentence to be executed.    

7.  On 31 January 2002, the applicant was dismissed under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-17, due to a court-martial.  He had completed 12 years, 7 months, and 19 days of creditable active service.

8.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons awarded or Authorized) of his DD Form 214 shows the:

* Meritorious Service Medal
* Joint Service Commendation Medal 
* Army Commendation Medal (2nd Award)
* AAM (6th Award)
* Joint Meritorious Unit Award
* National Defense Service Medal
* Humanitarian Service Medal
* Army Service Ribbon
* Overseas Service Ribbon  

9.  Orders, dated 4 December 1990, show he received the AAM (Fourth Oak Leaf Cluster), a total of 5 awards.   

10.  Paragraph 5-17 of Army Regulation 600-8-24 states an officer convicted and sentenced to dismissal as a result of a general court-martial will be processed pending appellate review.  An RA officer will be retained on active duty until the appellate review is completed or placed on excess leave.

11.  Army Regulation 635-200 sets forth the basic policy 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.

12.  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.

13.  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.  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.

2.  His record of service, while serving as a captain in the RA, included one general court-martial conviction for serious drug offenses and wrongful appropriation of a motor vehicle.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His current clean and sober life is commendable but not sufficient to warrant an honorable or a general discharge.

3.  He contends he is only aware of receiving 4 awards of the AAM but his DD Form 214 reflects 6 awards.  Since orders show he received 5 awards of the AAM, and per his request to correct his DD Form 214, item 13 of his DD Form 214 should be corrected to show the AAM (5th Award).  A copy of the orders will be provided to the applicant.      

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x__  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry "ARMY ACHIEVEMENT MEDAL (6TH AWARD)" from item 13 of his DD Form 214 and replacing it with the entry "Army Achievement Medal (5th Award). 


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his dismissal.  




      _______ _   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)                                         AR20110020995





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ABCMR Record of Proceedings (cont)                                         AR20110020995



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