IN THE CASE OF:
BOARD DATE: 12 November 2014
DOCKET NUMBER: AR20140005871
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 a more favorable discharge.
2. The applicant states his discharge should be upgraded because he was not conducting illegal behavior the way the court-martial made it out to be. If it were not for a Soldier setting him up while he was intoxicated he would have received an honorable discharge. Being set up by someone so that they can get out of trouble is unfair and unjust.
3. The applicant provides a three-page letter explaining his application and a photograph.
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 with a moral waiver on 29 July 1983 for a period of 3 years and training as a combat engineer. He completed his one-station unit training at Fort Leonard Wood, Missouri and his airborne training at Fort Benning, Georgia and was assigned to Fort Bragg, North Carolina for his first assignment.
3. On 7 January 1986, he was transferred to Fort Stewart, Georgia. On
13 March 1986, he was issued a General Officer Memorandum of Reprimand (GOMOR) for driving under the influence (DUI) of alcohol.
4. On 26 March 1986, the applicant was barred from reenlistment.
5. On 30 October 1986, the applicant was convicted by a general court-martial of the wrongful possession and distribution of cocaine and assault with intent to commit murder. He was sentenced to confinement for 10 years, forfeiture of all pay and allowances, reduction to the pay grade of E-1, and a dishonorable discharge.
6. On 21 October 1987, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.
7. On 22 February 1988, the United States Court of Military Appeals denied the applicants petition for grant of review.
8. On 27 May 1988, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He completed 3 years and 9 days of total active service and had 661 days of lost time due to confinement.
9. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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.
10. Army Regulation 635-200 (Personnel Separations), 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.
11. Army Regulation 635-200, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted by the Board. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his otherwise undistinguished record of service.
2. 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 and the discharge appropriately characterizes the misconduct for which he was convicted.
3. Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.
4. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the 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.
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