IN THE CASE OF:  	  

		BOARD DATE:  9 October 2014	  

		DOCKET NUMBER:  AR20140004384 


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 his dishonorable discharge be upgraded to an under other than honorable conditions discharge.

2.  The applicant states:

	a.  At the time of the incident, he had improper representation to argue facts that would have had a just outcome instead of what was handed to him.  He has lived with the burden of dishonor for over 15 years.  He was in his second enlistment and the regrettable choices of his past have had a mental impact on him.  He would like to make amends.

	b.  Before he enlisted in the Army and during his service, he struggled with substance and alcohol abuse without the opportunity of counseling and/or treatment.  As time progressed, so did his behavior and the company he kept was a contributing factor.  He had some issues afterwards but today he is mature and wise.

3.  The applicant provides no 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.  The applicant enlisted in the Regular Army (RA) on 1 October 1992.  On 28 January 1993, he was assigned to the 82nd Engineer Battalion, Germany.  

3.  On 15 July 1996, he pled guilty and he was convicted by a general court-martial of:

* one specification of wrongfully using cocaine
* one specification of wrongfully possessing cocaine
* six specifications of wrongfully distributing cocaine

4.  He was sentenced to confinement for 17 months, a forfeiture of all pay and allowances, reduction to private/E-1, and a dishonorable discharge.

5.  He was subsequently incarcerated at Fort Knox, KY, and then Fort Leavenworth KS.  On 16 April 1998, he was placed on excess leave while awaiting the appellate review.

6.  General Court-Martial Order Number 24, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, dated 1 February 1999, shows the applicant's sentence had been affirmed and having been complied with, the convening authority ordered his dishonorable discharge executed.  On 19 March 1999, he was accordingly discharged from the Army.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, by reason of court-martial, with a dishonorable discharge.  He completed 4 years, 9 months, and 11 days of net active service.  He also had 338 days of excess leave and 640 days of lost time due to being in confinement.

8.  Item 18 (Remarks) of his DD Form 214 contains the entry "continuous honorable active service from 1 October 1992 to 14 July 1996."


9.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.

	a.  Chapter 3 states characterization at separation will be based upon the qualify of the Soldier's service and the reason for separation.  It 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 dishonorable 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 3-7c provides that an under other than honorable conditions discharge is an administrative separation under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial.  No Soldier will be discharged under other than honorable conditions unless afforded the right to present his/her case to an administrative discharge board.  

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.  The evidence of record confirms the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  Notwithstanding his contention that he had ineffective counsel, there is no available evidence that supports this contention.  In addition, he could have raised the claim of ineffective counsel as an issue to be considered in mitigation during the court-martial and/or appellate process.

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  He pled guilty and he was convicted of using, possessing, and distributing cocaine on several occasions.  After a review of his record of service, it is clear his service did not meet the criteria for any other characterization of service.  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.

4.  In view of the foregoing, he is not entitled to the 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)                                         AR20140004384



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ABCMR Record of Proceedings (cont)                                         AR20140004384



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