BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20130000069 


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 a general discharge.

2.  The applicant states the items cited in his court-martial were for personal use, not for distribution. 

3.  The applicant did 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.  Having had prior service, the applicant enlisted in the Regular Army on 14 October 1986 and he held military occupational specialty 91A (Medical Equipment Specialist). 
3.  His records also show he was awarded or authorized the National Defense Service Medal, Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  His records further show he was promoted through the ranks to specialist/E-4 and he was assigned to the 4th Battalion, 23rd Infantry, 9th Infantry Division, Fort Lewis, WA. 

5.  On 11 May 1989, he was placed in pre-trial confinement at Fort Lewis, WA.

6.  On 17 May 1989, the applicant pled guilty and he was convicted by a general court-martial of two specifications of wrongfully distributing cocaine.  The court sentenced him to a forfeiture of all pay and allowances, confinement for 
33 months, reduction to private/E-1, and a dishonorable discharge.

7.  On 6 July 1989, the convening authority approved the sentence, 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 an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

9.  Headquarters, 9th Infantry Division, Fort Lewis, WA, General Court-Martial Order Number 17, dated 18 July 1990, shows that after completion of all required post-trial and appellate reviews the convening authority ordered the applicant's dishonorable discharge sentence executed.

10.  The applicant was in an excess leave status from 26 July 1991 to 
10 December 1996. 

11.  The applicant was discharged from the Army on 10 December 1996.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a dishonorable discharge.  This document further shows he completed a total of 7 years, 11 months, and 12 days (including excess leave) of creditable military service.  He had lost time from 11 to 13 May 1989 and from 14 May 1989 to 25 July 1991. 

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.  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.

14.  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.  

15.  Army Regulation 635-200, 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 which 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.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

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 contention regarding the personal use of drugs was noted.  However, such issue was presumably, or should have been, raised and/or considered during the court-martial proceedings or during the appeal process.  That would have been the appropriate forum to raise such 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.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20130000069



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ABCMR Record of Proceedings (cont)                                         AR20130000069



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