IN THE CASE OF:	  

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140013675 


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, that his dishonorable discharge be upgraded.

2.  He states his discharge should be upgraded based upon the way that he was prosecuted and the length of time that has passed since his discharge.  He contends that the fact that he was punished by incarceration and by receiving a dishonorable discharge is essentially double punishment.  He was a member of the honor guard, was never in trouble, maximized his Skills Qualification Test (SQT) every year, was a "strip" Soldier and loved his job.  He served his country with honor.  It has been over 20 years since his separation and he has never been in trouble.

3.  He provides no additional evidence in support of this application.

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.  His record shows he enlisted in the Regular Army on 19 February 1980.  The highest rank/pay grade he attained while serving on active duty was private first class/E-3.  However, he held the rank/pay grade of private/E-1 at the time of separation.

3.  General Court-Martial Order Number 20 published by Headquarters, Fort Hood, TX, dated 7 September 1982, shows the applicant was found guilty at a general court-martial of seven specifications of violating Article 134 of the Uniform Code for Military Justice (UCMJ) by:

* wrongfully possessing marijuana on a military installation
* wrongfully transferring marijuana on a military installation
* wrongfully selling marijuana to a person known to be a service member

4.  On 21 June 1982, the following sentence was adjudged:

* reduction to the lowest enlisted grade
* confinement at hard labor for 4 years
* a forfeiture of $200.00 per month for 48 months
* dishonorable discharge

5.  On 7 September 1982, only so much of the sentence as provided for a dishonorable discharge, confinement at hard labor for 3 years, a forfeiture of $200.00 per month for 36 months, and reduction to the grade of E-1 were approved and, except for the dishonorable discharge, was ordered to be executed.  

6.  On 18 April 1983, the U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.

7.  General Court-Martial Order Number 603 published by U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, KS, dated 8 August 1983, shows the remainder of the applicant's sentence had been finally affirmed and the appropriate authority ordered the dishonorable discharge duly executed.  

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 25 August 1983 under the provisions of paragraph 3-10, Army Regulation 635-200 (Personnel Separations), as a result of court-martial and his character of service is shown as "Dishonorable."  This form also shows he was awarded or authorized the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

9.  Army Regulation 635-200:

	a.  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.

	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.

	c.  Provides that an enlisted person will be given a bad conduct discharge or dishonorable discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

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 applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations.

2.  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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.
3.  The available evidence failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated and his discharge upgraded.  As a result, clemency is not warranted in this case.  Therefore, there is no legal basis for granting the applicant's request for 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)                                         AR20140013675



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ABCMR Record of Proceedings (cont)                                         AR20140013675



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