IN THE CASE OF:	  

		BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20130000718 


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 is seeking employment with a municipality as a heavy equipment operator and he requires an upgrade of his discharge if possible.

3.  The applicant provides no additional evidence in support of 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.  On 3 February 1977, he enlisted in the Regular Army for 3 years.  He extended his enlistment for 6 months on 25 June 1979.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 7 March 1980.  On 3 June 1980, he immediately reenlisted for 3 years.
3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

* 28 December 1981 for failing to go at the time prescribed to his appointed place of duty on 23 December 1981
* 12 October 1982 for drunk driving 

4.  On 28 December 1982, he received a Bar to Reenlistment Certificate.

5.  On 19 January 1983, the applicant was convicted by a general court-martial of two specifications of conspiracy to sell marijuana in the hashish form.  He was sentenced to confinement at hard labor for 2 years, reduction to private (PV1)/
E-1, forfeiture of all pay and allowances, and a dishonorable discharge.

6.  On 12 April 1983, the convening authority approved the sentence.

7.  On 18 May 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  General Court-Martial Order Number 702, issued by the U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, dated 6 October 1984, and the provisions of Article 71(c) having been complied with, ordered the sentence executed.

8.  On 31 October 1984, the applicant was discharged accordingly with a dishonorable discharge.  He completed 2 years, 7 months, and 16 days of creditable active service that included a total of 648 days of time lost.

9.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 3 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

	b.  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.

10.  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.  He accepted NJP on two occasions and he had received a Bar to Reenlistment Certificate.

2.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  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.

4.  He had been promoted to sergeant, a position of authority and responsibility.  In promoting the applicant to sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a sergeant, he was responsible for the welfare of those assigned under him.  He violated this special trust and confidence.

5.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or to general 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)                                         AR20130000718



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ABCMR Record of Proceedings (cont)                                         AR20130000718



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