IN THE CASE OF:	  

		BOARD DATE:  10 January 2013

		DOCKET NUMBER:  AR20120012546 


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 that his dishonorable discharge be upgraded to an honorable discharge.

2.  The applicant states he believes that his discharge is unjust because of improper counseling and labeling by the administrator, such as labeling him an atheist.  He goes on to state that he accepted it at the time because he did not know what it meant and at the time he thought he was being offered an opportunity to retrain to correct his wrong; however, he was told by the administrator that was an error. 

3.  The applicant provides no additional documents with his 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.  The applicant enlisted in the Regular Army on 6 October 1981 for a period of 3 years, training as a fire support specialist and assignment to Europe.  He completed his one-station unit training at Fort Sill, Oklahoma and was transferred to Germany on 8 February 1982.

3.  He departed Germany on 23 July 1983 for assignment to Fort Stewart, Georgia.  He was advanced to the pay grade of E-4 on 1 February 1984.

4.  On 18 September 1984, he reenlisted for a period of 3 years and service school training as a motor transport operator.

5.  On 13 June 1985, he was convicted pursuant to his pleas by a general court-martial of wrongfully distributing 10.37 grams of marijuana on 5 November 1984, wrongfully distributing 6.27 grams of marijuana on 29 November 1984, and wrongfully distributing 35 grams of marijuana on 21 December 1984.  He was sentenced to confinement for 21 months, forfeiture of all pay and allowances, reduction to the pay grade of E-1, and a dishonorable discharge.  However, on     2 August 1985, the convening authority suspended that part of the sentence in excess of 15 months confinement until 1 November 1986, unless sooner vacated.  He was transferred to the U.S. Army Correctional Activity at Fort Riley, Kansas to serve his confinement.

6.  On 10 October 1985, the U.S. Army Court of Military Review affirmed the findings and sentence approved by the convening authority.

7.  On 31 January 1986, while the applicant was on excess leave pending appellate review, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 3 years, 8 months, and 17 days of total active service and had approximately 218 days of lost time due to imprisonment.

8.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.     

9.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) governs the policies and procedures 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.

10.  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 trial by court-martial was warranted by the gravity of the offenses charged and his 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.  His contentions should have been raised during the trial and finally adjudicated during the appellate process.  

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate, considering the available facts of the case.

3.  Accordingly, there appears to be no basis for clemency in his case or 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)                                         AR20120012546





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ABCMR Record of Proceedings (cont)                                         AR20120012546



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