IN THE CASE OF:  	  

		BOARD DATE:  11 September 2014  	  

		DOCKET NUMBER:  AR20140002241 


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 that his dishonorable discharge be upgraded to general, under honorable conditions.

2.  The applicant states he entered the military and ended up being around the wrong people.  He contends he was young when he took drugs and became an addict.  He has regretted his decisions ever since.  He is older and wiser now and is trying to the best of his ability to straighten out his past.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  In December 1984, the applicant, at the age of 18 years and 1 month, enlisted in the Regular Army.  He was trained as a tank turret repairer.

3.  On 16 June 1986, the applicant accepted nonjudicial punishment for twice failing to go to his appointed place of duty on 6 June 1986, to wit: physical training formation and work call formation.

4.  General Court-Martial Order Number 37, 2nd Armored Division, Fort Hood, TX, dated 23 October 1987, announced the applicant's conviction for violating Article 112a (three specifications) for wrongful distribution of marijuana on three separate dates.

5.  The applicant pled guilty.  He was found guilty.  His sentence, adjudged on 
22 September 1987, was:

	a.  reduction to private, pay grade E-1;

	b.  forfeiture of all pay and allowances;

	c.  confinement for 3 years; and

	d.  a dishonorable discharge.

6.  On 23 October 1987, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, 13 months confinement, forfeiture of all pay and allowances, and reduction to private, pay grade E-1; and, except for the part extending to a dishonorable discharge, ordered it to be executed.

7.  On 28 March 1988, the U.S. Army Court of Military Review considered the entire record of the applicant's conviction and issues brought to it by him.  The court held the findings of guilty and the sentence as approved by the convening authority correct in law and fact and affirmed them as such.

8.  General Court-Martial Order Number 530, United States Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, dated 
31 October 1988, announced the sentence had been affirmed.  Article 71(c) having been complied with, and the sentence to confinement having been completed, that portion of the sentence pertaining to a dishonorable discharge was to be executed.


9.  The applicant's DD Form 214 reports that he was discharged from the Regular Army on 25 November 1988 under the provisions of Army Regulation 
635-200, chapter 3, due to court-martial.  He received a dishonorable characterization of service.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

	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.  

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 contends that his dishonorable discharge should be upgraded to general, under honorable conditions because he has young and had associated with the wrong people.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant 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.  Given the seriousness of the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was 18 years of age when he enlisted.  He had satisfactory completed training and had served for about 1 1/2 years before any negative incidents were documented.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

5.  In view of the above, there s no basis for granting the applicant’s requested relief.

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)                                         AR20140002241





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ABCMR Record of Proceedings (cont)                                         AR20140002241



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