IN THE CASE OF:	  

		BOARD DATE:	    31 March 2015

		DOCKET NUMBER:  AR20140014629 


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 an upgrade of his dishonorable discharge to a general discharge (GD).

2.  He states:

* since he changed his life for the better, he would like an upgrade of his dishonorable discharge to a GD in order to received healthcare and education benefits
* he complied with his sentence and would like to resume his education in order to better his life
* he had completed two years of college in business administration working at the Ritz Carlton as a night manager and would like to complete schooling
* he has returned to Puerto Rico to assist his mother due to her health condition, but his characterization of service has made life difficult and he has been carrying this burden for a long time
* although he acknowledges his mistakes, he states he has paid for them and served his time and has become a better person, helping the community and striving for a better life

3.  He provides:

* Department of the Army Certificate of Training
* Certificate of Completion from the National Safety Council Defense Driving Campaign
* Certificate of Training for Light Industrial Safety Orientation
* Certificate of No Penal Record from Puerto Rico

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 13 April 1982, the applicant enlisted in the Regular Army (RA).   He completed initial entry training and he was awarded military occupational specialty 13B (Cannon Crewman).

3.  General Court-Martial (GCM) Order Number 67, issued by Headquarters, 9th Infantry Division, Fort Lewis, WA, shows that on 16 August 1984, the applicant was convicted of wrongful distribution of 130 milligrams, more or less, of methamphetamine.

4.  He was sentenced to a dishonorable discharge from the service, forfeiture of all pay and allowances, confinement at hard labor for 30 months, and a reduction to the grade of private (PVT)/E-1. 

5.  On 30 January 1985, the U.S. Army Court of Military Review found the findings of guilty and the approved sentence to be correct in law and fact and affirmed the approved sentence.

6.  On 5 June 1985, the U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, issued General Court-Martial Order Number 140 ordering execution of the affirmed sentence.

7.  His DD Form 214 shows he was dishonorably discharged on 24 June 1985 as a result of court-martial.



8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 provided that a Soldier was given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed and 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

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

2.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for veterans' benefits.  Further, the passage of time and post-service accomplishments are not usually a sufficient basis for upgrading a properly-issued discharge.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  He was convicted of wrongful distribution of illegal drugs (methamphetamine).  His conviction and sentence by a GCM 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 his dishonorable discharge until after his conviction and sentence had been reviewed and affirmed. 

4.  His statements regarding his post-service conduct and that he has already paid for his mistakes were carefully considered.  There is no reason to doubt his statements; however, the situation he describes does not mitigate the seriousness of the offenses for which he was tried and convicted.

5.  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 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)                                         AR20130019610



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ABCMR Record of Proceedings (cont)                                         AR20140014629



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