IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120000704 


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.  The applicant states:

* he is trying to get into a Department of Veterans Affairs (VA) program
* he cannot find a good job
* he has learned from his mistake

3.  The applicant provides self-authored statements.

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.  After having completed a prior period of active service, the applicant reenlisted in the Regular Army on 7 April 1980.  His military occupational specialty was 64C (Motor Transport Operator).  The highest rank/grade he attained while on active duty was specialist four/E-4.

3.  General Court-Martial Order Number 124, Headquarters, 1st Armored Division, APO New York, dated 9 September 1983, shows the applicant was tried and found guilty of the following:

* Specification 1, on or about 22 February 1983, wrongfully possessing .029 grams of cocaine with the intent to distribute
* Specification 2, on or about 22 February 1983, wrongfully distributing .029 grams of cocaine
* Specification 3, on or about 24 February 1983, wrongfully possessing .062 grams of cocaine with the intent to distribute
* Specification 4, on or about 24 February 1983, wrongfully distributing .062 grams of cocaine
* Specification 5, on or about 13 March 1983, wrongfully possess .574 grams of heroin
* Specification 6, on or about 13 March 1983, wrongfully distributing .574 grams of heroin

4.  The applicant was sentenced to a dishonorable discharge, confinement at hard labor for 5 years, forfeiture of $500 pay per month for five years, and reduction in rank/grade to private/E-1.

5.  On 19 April 1984, the United States Army Court of Military Review dismissed Specifications 1 and 3 above and the findings of guilty for both were set aside.  The remaining findings of guilty and the sentence were affirmed.

6.  On 17 May 1984, the applicant appealed his conviction to the United States Court of Military Appeals. 

7.  On 30 October 1984, the United States Court of Military Appeals determined
Specifications 5 and 6 above were multiplicious for findings and dismissed Specification 5 above and set aside the finding of guilty for this Specification.

8.  On 2 November 1984, the United States Court of Military Appeals affirmed the decision of the United States Army Court of Military Review, with the exception of Specification 5 above, which was dismissed.  

9.  General Court-Martial Order Number 820, United States Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS, dated 21 November 1984, confirms Specifications 1, 3, and 5 above were dismissed and the findings of guilty for each were dismissed.  The order also executed his sentence.

10.  On 19 December 1984, the applicant was separated with a dishonorable discharge.  His DD Form 214 shows he completed 3 years, 4 months, and 3 days of active service and had 2 years and 8 months of prior active service.  He also had 2 years, 5 months, and 26 days of foreign service.

11.  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.

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.  

13.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his dishonorable discharge was carefully considered.

2.  The record does not show, nor has the applicant provided evidence showing, that the general court-martial proceedings against him were not conducted in accordance with law and regulations.  

3.  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 nature of the applicant's misconduct and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  The applicant has failed to provide sufficient evidence to merit an upgrade of his discharge as a matter of equity.  As a result, clemency is not warranted in this case.

4.  The ABCMR does not grant requests for upgrade of discharge solely for the purpose of making the applicant eligible for veteran’s benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

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)                                         AR20120000704



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ABCMR Record of Proceedings (cont)                                         AR20120000704



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