IN THE CASE OF:	  

		BOARD DATE:	  23 September 2014

		DOCKET NUMBER:  AR20140002916 


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, in effect, an upgrade of his dishonorable discharge.

2.  The applicant states:

* he has a felony on his record and it is hindering him from pursuing a career in any Federal-related jobs 
* his discharge is stopping him from having a gun permit so that he is legally able to protect his family at home
* he was not a drug dealer even though his charges stated so
* he made a bone-headed decision by doing his girlfriend's mother a favor by purchasing marijuana for her for medical purposes
* his girlfriend's mother decided the quality of the marijuana was not worth the purchase price and he was just trying to get his money back
* he attempted to get another Soldier in his unit who was known to be in trouble for domestic violence, dealing drugs, missing formation, and other careless lawbreaking things to buy the marijuana
* he was later told the same Soldier was promised lesser charges if he set someone else up or set up a drug deal
* he took the Soldier to meet another individual to purchase the marijuana and he was assured this individual was not police or a robber
* he realized other police were sitting in a van nearby after he had sold the individual the marijuana
* he was investigated for months and he was never caught or seen selling drugs because he was not a drug dealer
* he was entrapped and the situation was illegal
* he desires his life back, his dishonorable discharge dismissed, a second chance at benefits, and a second chance at opportunities in life
* he joined the Armed Forces because he wanted to fight for the freedom of his country and do something good and worthy
* he wanted to make his mother and country proud and he never had any regrets joining the military
* he was a model Soldier and followed the rules and laws to the fullest
* he had many accomplishments and would have reenlisted had he not made an epic mistake

3.  The applicant does not provide additional 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.  On 20 November 1990, the applicant enlisted in the Regular Army.

3.  General Court-Martial Order Number 37, issued by Headquarters, I Corps and Fort Lewis, Fort Lewis, WA, dated 28 June 1994, shows the applicant pled and was found guilty of:

* wrongful distribution of approximately 2.3 grams of marijuana on or about 27 January 1994
* assault with the palm of his hands, consummated by a battery on or about 22 February 1994
* wrongful communication of threats on or about 18 February 1994

4.  General Court-Martial Order Number 57, issued by Headquarters, I Corps and Fort Lewis, Fort Lewis, WA, dated 11 August 1994, shows his sentence and findings were affirmed and his discharge was ordered to be executed.

5.  On 16 January 1996, he was dishonorably discharged as a result of court-martial.  He completed 4 years and 3 days of creditable active service.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable discharge or BCD) 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.

	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.

	c.  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.

7.  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 evidence of record does not support the applicant's request for an upgrade of his dishonorable discharge.

2.  His conviction and sentence by a general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given the dishonorable discharge until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Military Review.

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.  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)                                         AR20140002916



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ABCMR Record of Proceedings (cont)                                         AR20140002916



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