IN THE CASE OF:	  

		BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120005002 


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 an upgrade of his dishonorable discharge would allow him access to some veteran's benefits.  He suffers from ailments which include a left leg amputation, high blood pressure, and diabetes.  When he was 18 years old he was unable to understand the seriousness of a drug conviction or how it would impact his life.  He is not claiming to be a victim; however, he was never exposed to heroin prior to his assignments to Fort Bragg, NC, during the Vietnam era.

3.  The applicant provides no additional evidence.

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 born on 1 August 1952 and enlisted in the Regular Army at 18 years of age on 30 September 1970 and held the military occupational specialty 11B (Light Weapons Infantryman).  He was assigned to Fort Bragg, NC, from 30 April 1971 to 20 December 1973.

3.  His record shows he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions between 5 February 1971 and 15 November 1971 for being absent without leave (AWOL).

4.  On 21 May 1973, he was convicted, pursuant to his pleas of guilty, by a general court-martial of one specification of wrongfully distributing heroin and two specifications of wrongfully possessing heroin.  The Court sentenced him to a dishonorable discharge, forfeiture of $150.00 pay per month for 12 months, confinement at hard labor for 12 months, and reduction to private (PV1)/E-1.  The convening authority approved his sentence on 13 September 1973.

5.  On 13 May 1974, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

6.  His record does not contain evidence to show he petitioned the U.S. Military Court of Appeals to review his case.

7.  General Court-Martial Order Number 719, dated 8 July 1974, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the dishonorable discharge be duly executed.

8.  Accordingly, on 18 July 1974, the applicant was discharged from active duty in the rank/grade of PV1/E-1 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1 with a dishonorable discharge.  He completed 2 years, 11 months, and 5 days of creditable active service with 319 days of lost time.

9.  Army Regulation 635-200, paragraph 11-1 (Dishonorable Discharge), in effect at the time, states an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

	a.  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.  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.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded so that he can attain certain veteran's benefits and because he was young and foolish at the time of his service.  

2.  The evidence of record shows the he was convicted by a general court-martial of one specification of wrongfully distributing heroin and two specifications of wrongfully possessing heroin.  His 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 and the discharge appropriately characterized the misconduct for which he was convicted.

3.  He provided no evidence to show his discharge or the court's decision to find him guilty is unjust or was a result of improper actions.  There is no error or 
injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations with due process and with no violation of his rights.

4.  Records show that he was approximately 20 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. Additionally, the ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a correction to his military records.

5.  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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.  In view of the circumstances in this case, he is not entitled to an upgrade of his 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 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)                                         AR20120005002





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ABCMR Record of Proceedings (cont)                                         AR20120005002



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