IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120020380 


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 upgrade of his dishonorable discharge.

2.  The applicant states he was addicted to cocaine and all of his charges were related to his cocaine use.  He states that today he is a different person; a good citizen and a truck driver for the Salvation Army.  He further states he has joined a church and he provided 15 years of honorable service to the Army.

3.  The applicant provides a letter of support.

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 30 September 1975.  He completed his one-station unit training as a water treatment specialist at Fort Leonard Wood, MO.  He remained on active duty through a series of continuous reenlistments, served overseas tours in Hawaii and Germany, and was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 3 July 1984.

3.  On 1 July 1985, the applicant was assigned to Fort Lee, VA with his wife and four children.

4.  On 3 March 1988, while serving as a drill sergeant at Fort Lee, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for three specifications of wrongfully attempting to enter 
into personal and social relationships with three Soldiers in training.  He was subsequently removed from drill sergeant duties on 30 March 1988.

5.  On 18 May 1989, he was convicted pursuant to his pleas by a general court-martial of committing sodomy with a female Soldier in training, violations of lawful general regulations, dereliction in the performance of his duties by socializing and engaging in sexual acts with a female Soldier in training, wrongfully distributing cocaine, and wrongfully using cocaine.  He was sentenced to reduction to private (PV1)/of E-1, forfeiture of all pay and allowances, confinement for 1 year, and a dishonorable discharge.  The applicant was transferred to the U.S. Army Correctional Activity at Fort Riley, KS to serve his sentence to confinement.

6.  On 30 March 1990, the U.S. Army Court of Military Review (USACMR) determined the military judge had erred by failing to discharge his duty to remain and to appear impartial.  Accordingly, the USACMR set aside and dismissed charge one and its specification (sodomy) and affirmed the remaining findings.  The USACMR set aside the sentence and authorized a rehearing on the sentence.

7.  A rehearing was conducted at Fort Riley and the General Court-Martial Convening Authority (GCMCA) approved only so much of the sentence as provided for confinement for 10 months, forfeiture of all pay and allowances, reduction to PV1/E-1, and a dishonorable discharge.

8.  On 21 December 1990, the USACMR affirmed the findings and sentence as approved by the GCMCA after the rehearing.

9.  Accordingly, the applicant was discharged pursuant to a duly-reviewed and affirmed court-martial conviction on 9 May 1991.  He completed 14 years, 11 months, and 19 days of total active service with 231 days of time lost due to confinement.

10.  The letter of support provided by the applicant is from the Director of Residential Service of a Salvation Army Adult Rehabilitation Center.  The writer indicates the applicant completed a 6-month program in June 2012, that he is employed as truck driver for the center, and that he serves as a role model for the new men at the center.

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 applicant's contentions and supporting documents have been noted; however, he did not provide sufficient evidence to warrant an upgrade of his discharge.  Considering the nature of his offenses, the applicant betrayed the trust placed in him as a noncommissioned officer and leader while in a position in which he was expected to mentor and train Soldiers in training who were especially vulnerable and relied on him for their care and serve as a role model.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the dishonorable discharge appropriately characterizes the misconduct for which he was convicted.

3.  As such, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

4.  The applicant’s post-service accomplishments to better himself are commendable; however, are insufficient to mitigate the offenses leading to his dishonorable discharge.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an upgrade of his dishonorable discharge to any other characterization of service.

6.  Additionally, 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 therefore were appropriate.  As a result, clemency is also 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 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)                                         AR20120020380



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ABCMR Record of Proceedings (cont)                                         AR20120020380



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