BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130005023 


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, under honorable conditions discharge.

2.  He states he has completely turned his life around and is trying to help others do the same.  A discharge upgrade would help him tremendously and help his career.  He also states he was very young when his misconduct took place.  He is currently attending college in pursuit of a degree in Human Services.

3.  He provides a:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* college transcript

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.  His record shows he was born on 4 November 1963.  He enlisted in the Regular Army on 3 March 1981 at the age of 17 years, 4 months, and 1 day.  
Upon completion of initial entry training, he was awarded military occupational specialty 76Y (Unit Supply Specialist) and assigned to Fort Gordon, GA.  The highest rank/pay grade he attained while serving on active duty was private/E-2.  However, at the time of his separation he held the rank/pay grade of private/E-1.

3.  General Court-Martial (GCM) Order Number 15, published by Headquarters, U.S. Army Signal Center and Fort Gordon, shows the applicant was found guilty of four specifications of violating Article 134 of the Uniform Code of Military Justice (UCMJ)) for wrongfully selling various quantities of marijuana on four occasions between 5 January to 2 February 1982.

4.  The following sentence was adjudged on 30 March 1982:

* Confinement at hard labor for 1 year
* Forfeiture of all pay and allowances
* Reduction to private/E-1
* Dishonorable discharge

5.  On 26 May 1982, the sentence was approved and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  Pending completion of the appellate review, the applicant remained in confinement until 17 November 1982.

6.  On 18 November 1982, the applicant was placed on excess leave for an indefinite period awaiting the outcome of an appellate review of his punitive discharge.

7.  On 29 October 1982, the U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.

8.  GCM Order 422, issued by Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth, KS, on 5 November 1982, shows the unexecuted portion of the sentence to confinement was remitted.

9.  GCM Order 245, issued by United States Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, on 16 January 1983, shows the appropriate authority ordered the dishonorable discharge to be duly executed.

10.  His DD Form 214 shows he was discharged on 6 April 1983 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 as the result of court-martial.  This form also shows his character of service as "Dishonorable."  He was credited with lost time during the period 30 March through 17 November 1984 due to imprisonment.

11.  The applicant provides a college transcript extracted from the Klive Kellog Community College internet website which shows he completed some college courses during the Fall 2010 through Fall 2012 timeframe.

12.  Army Regulation 635-200:

	a.  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.  

	b.  Paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial.

	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.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

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 applicant's contentions are duly noted.  However, they are not sufficiently mitigating to absolve his misconduct during his period of service.

2.  Records show that the applicant was 18 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

4.  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.

5.  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)                                         AR20130005023





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ABCMR Record of Proceedings (cont)                                         AR20130005023



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