BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120005205 


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 to an honorable or a general discharge.

2.  He states he believes his sentence was excessive.  He believes his service up until the offense for which he was discharged was honest and faithful.  He has had no legal issues since his release and he has been a good citizen.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 15 May 1986, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 13B (Cannon Crewmember).

3.  On 23 November 1988, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using cocaine between 3 and 5 October 1988.

4.  On 18 May 1989, Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, Fort Drum, NY, issued General Court-Martial Order Number 4.  The order shows he pleaded guilty and was found guilty of one specification, a violation of Article 112a, UCMJ, for wrongful distribution of approximately 9.5 grams of cocaine on divers occasions from on or about 1 February 1988 to 31 October 1988 at Fort Drum, NY.  He pleaded guilty and was found guilty of this specification.  He was sentenced to a dishonorable discharge, confinement for 4 years, and forfeiture of all pay and allowances.  The sentence was approved and, except for the part of the sentence extending to the dishonorable discharge, ordered executed.

5.  On 10 June 1992, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 14 October 1993, the U.S. Disciplinary Barracks, Combined Arms Command and Fort Leavenworth, Fort Leavenworth, KS, issued General Court-Martial Order Number 356.  His sentence having been finally affirmed, the order directed execution of his dishonorable discharge.

7.  On 4 March 1994, he was discharged in accordance with his affirmed sentence.

8.  His record is void of documentation showing any acts of valor or significant achievement warranting special recognition.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-10 states a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.

	c.  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.  The Manual for Courts-Martial in effect at the time stated the maximum punishment for wrongful distribution of cocaine was a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his dishonorable discharge.

2.  The general court-martial proceedings against him were conducted in accordance with law and regulations.  His conviction and sentence were properly reviewed and affirmed, and the sentence was ordered to be duly executed.  The evidence of record does not show and he has not provided evidence showing his sentence was excessive.

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 applicant's record of indiscipline (which occurred on more than one occasion) and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.




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)                                         AR20120005205



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ABCMR Record of Proceedings (cont)                                         AR20120005205



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