BOARD DATE:	  28 October 2014

		DOCKET NUMBER:  AR20140003805 


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, clemency and an upgrade of his bad conduct discharge (BCD).

2.  The applicant states he believes the characterization of his service is unjust.

3.  The applicant provides a self-authored statement.

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 11 February 1992, the applicant enlisted in the Regular Army for a period of four years.  He served in Germany from 24 February 1992 to 23 February 1994.

3.  He received a letter of reprimand on 1 October 1993 for being disorderly, disrespectful toward noncommissioned officers, and for not following orders.

4.  On 30 November 1993, contrary to his plea, he was convicted by a special court-martial of wrongful distribution of 4.07 grams of hashish on 24 September 1993.  He was sentenced to be discharged from the service with a BCD and reduction to the grade of private, E-1.  

5.  On 26 January 1994, the sentence was approved and except for that part of the sentence extending to a BCD, was executed.

6.  On 4 May 1994, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

7.  On 19 January 1995, the BCD was ordered to be executed.  He was discharged on 21 February 1995 under the provisions of Army Regulation      635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV, by reason of court-martial, other with issuance of a BCD.  He completed 3 years and 11 days of creditable active service.

8.  He provided a self-authored statement in which he stated:

	a.  he feels that in his case he was turned into a criminal when actually he wasn't a criminal.  He was pressured by a Soldier in his unit to get him hashish.  He states he was in Fulda, Germany from February 1990 to April 1994.

	b.  the first 10 months of his tour were quite hard.  He was away from his sons with whom he had a relationship prior to his decision to join the military.  For the first time in his life he was away from home, at least 20 thousand miles away.  After 10 months, he experienced home sickness or some would say depression.  He met a Soldier in the maintenance department who knew all the dealers in Fulda, Frankfurt, Hanau, and Cassel.  He then started a hashish habit and they began to smoke it on a daily basis.  The other Soldier failed a urinalysis test and targeted him in an undercover investigation.  

	c.  he was never tested for drugs and he never received nonjudicial punishment for dealing with any type of drug.  He didn't even have a civilian criminal record for marijuana.  He feels the inequity in his case is based on the findings of the courts (Civil Action No. 77-0904) which ruled that a former Army service member is entitled to an honorable discharge if discharged before 
1 January 1975 as a result of an administrative proceeding.  In this case, the Army introduced evidence developed by or as a direct or indirect result of compelled urinalysis testing administered for the purpose of identifying drug abusers (either for the purposes of entry into a treatment program or to monitor progress through rehabilitation or follow-up).  

	d.  he feels it was inequitable because he was coerced by the U.S. Army Criminal Investigation Command (CID) and K----- (the Soldier who got him into this situation).

	e.  he believes his discharge was inequitable because it was one isolated incident in 48 months of service with no other adverse action.  He alleges he was never in trouble prior to this incident, but he never had a problem with it in the military which he was on his third year of service prior to when this incident occurred.

	f.  he's not saying he shouldn't have been punished, but he believes he could have been rehabilitated from this one-time incident and could have still been productive for the U.S. Army.  

	g.  he has been discharged from the U.S. Army for 19 years and now he has done the punishment quite well.  He still has no convictions and he's fighting drug addiction every day of his life and staying clean.  He alleges he has a medical condition that was diagnosed while he was serving his country.  He receives some benefits from the Department of Veterans Affairs (VA), but it's not enough to fully help him rehabilitate from this injury and this discharge.  After 75 percent of his service tour completed, he thinks he deserves at least a characterization of service of general under honorable conditions.  This will allow him to rehabilitate and rebuild his life from this tragic incident that has haunted him for the past 19 years.

9.  His service record is void of medical documentation that indicates he was diagnosed with any medical conditions prior to his discharge. 

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

   a.  Paragraph 3-10 of this regulation states 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.

	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.

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.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 4-1 (Special Standards) states that pursuant to the 
27 November 1979 order of the United States District Court for the District of Columbia in Giles v. Secretary of the Army (Civil Action No. 77-0904), a former Army Soldier is entitled to an honorable discharge if a less than honorable discharge was issued to the Soldier on or before 27 November 1979 in an administrative proceeding in which the Army introduced evidence developed by or as a direct or indirect result of compelled urinalysis testing administered for the purpose of identifying drug abusers (either for the purposes of entry into a treatment program or to monitor progress through rehabilitation or follow-up). 
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his BCD is unjust; however, his trial by court-martial was warranted by the gravity of the offense charged and his conviction and discharge were affected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

2.  He states that in his case, he was turned into a criminal when actually he wasn't a criminal.  However, he was convicted by a special court-martial of wrongful distribution of 4.07 grams of hashish, which is a serious offense.

3.  Although he contends he was never tested for drugs and he never received nonjudicial punishment for dealing with any type of drug, he admitted that he had a hashish habit and he and another Soldier smoked it on a daily basis.  

4.  He contends he feels the inequity of his case is based on the findings of the courts (Civil Action No. 77-0904), which ruled that a former Army service member is entitled to an honorable discharge if discharged before 1 January “1975” as a result of an administrative proceeding.  However, the Special Standards Provision found in the 27 November 1979 order of the United States District Court for the District of Columbia in Giles v. Secretary of the Army is not applicable to his case.  He was separated by reason of a special court-martial conviction, not as a direct or indirect result of compelled urinalysis testing administered for the purpose of identifying drug abusers.  In addition, he was convicted of distributing hashish, not using hashish.

5.  He contends he feels his character of service was inequitable because he was coerced by the CID and another Soldier.  However, his service record is void of evidence and he has not provided any evidence that supports his claim.   

6.  He also contends that it was one isolated incident in 48 months of service with no other adverse action.  However, his service record shows he previously received a letter of reprimand for being disorderly, disrespectful toward noncommissioned officers, and for not following orders.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an honorable or a general under honorable conditions discharge.

7.  His service record is void of medical records which indicate that he was diagnosed or treated for a medical condition while in the service.

8.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for clemency or for an upgrade of his BCD.  

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)                                         AR20140003805





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ABCMR Record of Proceedings (cont)                                         AR20140003805



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