BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120021189 


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 he pled guilty [at a general court-martial] and he has lived with this over him for the past 30 years.  He did not want to tell on other people at the time; so, he went to jail.  He believes he has paid for his mistake and has since lived on the right track.  He believes it is time to address this issue. He further states he has a store and needs to get a tobacco permit.

3.  The applicant does not provide any 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 enlisted in the Regular Army on 12 February 1980 for a period of 4 years.  He completed training and he was awarded military occupational specialty 76J (Medical Supply Specialist).

3.  His record shows he was awarded the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.

4.  His record further shows he was promoted through the ranks to specialist four (SP4)/E-4 and he served in Germany with the 5th General Hospital, Stuttgart, beginning on 9 June 1980.

5.  On 24 May 1982, consistent with his pleas, he was found guilty by a general court-martial of:

* wrongfully selling 11.02 grams of marijuana in the hashish on or about
1 February 1982
* wrongfully selling 10.29 grams of marijuana in the hashish on or about
3 February 1982
* wrongfully selling 13.02 grams of marijuana in the hashish on or about
4 February 1982

6.  As a result, he was sentenced to forfeiture of all pay and allowances, confinement at hard labor for 3 years, reduction to private (PV1)/E-1, and a dishonorable discharge.

7.  On 22 July 1982, the convening authority approved a lesser sentence of dishonorable discharge, confinement at hard labor for 20 months, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade; and except for that part of the sentence extending to the dishonorable discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

8.  On 28 October 1982, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the approved sentence.

9.  There is no indication he petitioned the U.S. Army Court of Military Review for a grant of review with respect to any matter of law. 

10.  General Court-Martial Order Number 65, issued by Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, dated 28 January 1983, shows that after completion of all required post-trial and appellate reviews, and the provisions of Article 71(c) having been complied with, the convening authority ordered the applicant's dishonorable discharge sentence executed.

11.  On 18 February 1983, the applicant was dishonorably discharged from the Army.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1, as a result of court-martial.  This document further shows he completed 2 years, 3 months, and 12 days of creditable active service.  He had time lost from 24 May 1982 to 18 February 1983.

12.  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.

13.  Army Regulation 635-200 governs the separation of enlisted personnel.

	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.

	c.  Paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that a Soldier will be given a bad conduct discharge 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his dishonorable discharge should be upgraded.

2.  The applicant was convicted by a general court-martial that was warranted by the gravity of the offenses charged at the time.  The conviction and discharge 

were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

4.  His contentions that he did not want to tell on other people is noted; however, such issue was or should have been raised during the court-martial or the subsequent review.  That would have been the proper forum to raise any issues.

5.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

6.  In view of the foregoing, there is no basis for granting him an upgrade of his dishonorable to any other characterization of service.

7.  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 undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were 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 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)                                         AR20120021189



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ABCMR Record of Proceedings (cont)                                         AR20120021189



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