BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120019950 


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 his dishonorable discharge (DD) be upgraded.

2.  The applicant states, in effect, that his DD is unduly harsh based on his otherwise good service as documented by his combat service and award of the Purple Heart, two Bronze Star Medals and four Army Commendation Medals (two for valor).  It has been 30 years since his discharge and at age 62 he needs medical assistance.  He is ashamed of what he did but is still a good man and has not been any trouble since he was discharged.

3.  The applicant provides no supporting documentation.

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 17 June 1968 and had continuous service through four reenlistments.  His last enlistment commenced on 31 March 1982.  He was promoted to sergeant first class effective 25 July 1979. 

3.  During his period of active duty, the applicant served in Vietnam, for 17 months, and in Germany twice, for 3 years on each occasion. 

4.  His record shows he was authorized and/or awarded the following:

* Bronze Star Medal with one Oak Leaf Cluster 
* Army Commendation Medal with three Oak Leaf Clusters (two with "V" device)
* Army Achievement Medal 
* Purple Heart
* Good Conduct Medal (4th award)
* National Defense Service Medal
* Vietnam Service Medal with a silver service star
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Service Ribbon
* Overseas Service Ribbon (2nd award)
* Noncommissioned Officers Professional Development Ribbon with numeral 3
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Expert Marksmanship Qualification Badge with Rifle and Pistol Bars

5.  There are no indications of any infraction or negative comments prior to the general court-martial.  His Enlisted Evaluation Reports (EER) were consistently in the top blocks with recommending advanced education and promotion with comments as typified by his last EER, ending August 1982.

6.  On 5 May 1983, while serving as a drill sergeant with the 4th Training Brigade, Fort Knox, the applicant was arrested by military police on several charges related to the sale of marijuana to military personnel and high school students who were also military dependents.

7.  On 14 July 1983, a general court-martial found the applicant guilty of two specifications of possession of marijuana and two specifications of distribution of marijuana.  He was sentenced to reduction to pay grade E-1, total forfeiture of pay and allowances, confinement for four years, and a dishonorable discharge.



8.  The general court-martial convening authority approved the findings and sentence, except that he reduced the period of confinement to 15 months.  He ordered that, except for the DD, the sentence was to be executed with the case to be referred to the United States Army Court of Military Review for appellate review. 

9.  The applicant requested and was placed on excess leave following his release from confinement pending completion of his appellate review.

10.  On 22 August 1985, the United States Army Court of Military Review affirmed the findings and sentence of the court-martial.  The applicant did not appeal this decision.

11.  Article 71(c) of the Uniform Code of Military Justice having been complied with, the DD was ordered executed and the applicant was accordingly discharged on 10 September 1985.  He had 16 years, 3 months, and 20 days of creditable service with 337 days of lost time due to incarceration.  

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7b states a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

	c.  Paragraph 3-11 states a Soldier will be given a DD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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.  The court-martial proceedings were conducted in accordance with applicable law and regulations, the punishment imposed was within legal limits, and the record of court-martial proceedings and appellate review are properly filed.  The type of discharge directed and the reasons therefore were appropriate considering the nature of the offenses for which he was court-martialed.

2.  For a senior noncommissioned officer in the position of trust as a drill instructor, selling drugs to other Soldiers or their dependents is an unconscionable act.  

3.  The applicant destroyed a very commendable and honorable career and virtually negated his prior honorable discharges with the serious nature of his offenses and loss of trust in a senior noncommissioned officer especially one serving in the position of trust as a drill sergeant.  

4.  Neither the mere passage of time nor normal good citizenship in-and-of themselves are a significant mitigating factor to warrant 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)                                         AR20120019950





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ABCMR Record of Proceedings (cont)                                         AR20120019950



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