IN THE CASE OF:	  

		BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140014938 


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 upgrade of his dishonorable discharge to a general discharge under honorable conditions.

2.  The applicant states, in effect:

* he is asking for this upgrade because he served a 4-year tour of duty, plus 3 1/2 years in the Disciplinary Barracks at Fort Leavenworth, KS
* he has never received any benefits for the time he served in the Army
* since his discharge, he has been working as an electrician and has been a model citizen

3.  The applicant provides two self-authored statements.

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 on 22 April 1987.  After completing one station unit training, he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade held was private first class/E-3.

3.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions:

	a.  On 13 March 1989, company-grade NJP for the following:

* communicating a threat to superior noncommissioned officer (NCO)
* willfully disobeying the lawful order of a superior NCO
* using disrespectful language toward a superior NCO

	b.  On 22 June 1989, field-grade NJP for:

* two specifications of violating unit pass policy by missing curfew

	c.  On 31 July 1989, field-grade NJP for the following:

* one specification of treating a superior NCO with contempt by telling another Soldier he did not have to obey the NCO, and by walking away when asked to show his identification card
* one specification of disobeying the lawful order of a superior NCO to show his identification card
* one specification for breaking restriction

4.  On 22 January 1991, the applicant's commander preferred court-martial charges for the following specifications:

* on 21 September 1990, distributing .13 grams of cocaine
* on 23 October 1990, distributing .52 grams of cocaine
* on 7 November 1990, distributing .64 grams of cocaine
* on 14 November 1990, distributing .75 grams of cocaine
* on 20 November 1990, distributing .51 grams of cocaine

5.  General Court-Martial Order (GCMO) Number 9, dated 12 November 1991, issued by Headquarters, 25th Infantry Division (Light), shows the applicant was convicted of all preferred charges shown above.  His sentence included confinement for 5 years, reduction to private/E-1, and a dishonorable discharge.
6.  On 25 February 1993, the U.S. Army Court of Military Review affirmed both the findings of guilty and the sentence.

7.  GCMO Number 453, dated 30 December 1993, issued by U.S. Disciplinary Barracks, U.S. Army Combined Arms Command and Fort Leavenworth, directed the dishonorable discharge to be duly executed.  On 11 February 1994, the applicant was discharged accordingly.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with a dishonorable discharge.  This form shows he completed 3 years, 11 months and 17 days of net service with 13 days of time lost prior to his end of term of service (ETS), and 1027 days after his ETS, both the result of being in confinement.  He was awarded or authorized:

* Army Good Conduct Medal (1st Award)
* Army Service Ribbon
* Overseas Service Ribbon

9.  The applicant provides two self-authored statements, which in effect state:

	a.  Statement, dated 22 April 2014:

* he requests the board read and review his case
* he asks for an upgrade to general under honorable conditions or, should the Board see fit, an upgrade to honorable
* he was a 60 millimeter machine gunner with the 25th Infantry Division
* he joined at age 29 and was very aware when he made the mistake that caused him to receive a court-martial
* he does not wish to minimize what he did, but since his discharge he has been a model citizen; this is because he wanted to pay for his mistakes
* he is hoping the Board is willing to see he has suffered by not having access to the benefits he might otherwise have received
* he was injured while on active duty and, but for this discharge, he would have been able to receive care through the Department of Veterans Affairs (VA)
* he is very sorry for the mistakes he made while on active duty

	b.  Statement, dated 20 August 2014:

* he had a good record until the incident that changed his Army career
* while stationed with the 25th Division he traveled to many Asian countries while participating in training
* at one point, his unit was ordered to prepare for deployment to the Philippines; as he sat in the aircraft with his unit for what seemed like an eternity, all the thoughts a Soldier has in this situation entered his mind
* this is what was happening when he got into trouble
* he was near his ETS when he was set up by his roommate (alleging entrapment by law enforcement)
* his roommate had gotten into trouble for trying to pick up a prostitute; because they threatened court-martial with a bad conduct discharge, his roommate set him up, leading the authorities to believe he was selling drugs
* he was not selling drugs during this time
* his roommate was told to solicit him for drugs
* a female Naval detective, posing as his roommate's girlfriend, also asked him to get her cocaine
* after 3 weeks of being asked, he got tired of it and picked up what amounted to one gram of cocaine
* after he was apprehended, he was offered a deal
* he would be let go if he set up the cocaine dealer, but he could not put someone else's life in jeopardy to save his own
* because he refused the deal, he was placed in confinement for 4 months
* his commander was not told about what happened, so he was allowed to ETS as normal; leaving his unit with an honorable discharge
* 4 months after his discharge, the Army showed up at his civilian residence in New Orleans, LA
* he was brought back on active duty to face court-martial charges
* after waiting about a year, he was sent to Fort Leavenworth, then given a dishonorable discharge
* he does not feel he deserved this type of treatment; after receiving a dishonorable discharge he became a productive member of society, worked as an electrician, and stayed out of trouble
* Hurricane Katrina caused him to lose everything; he had to work hard to put his family back together
* he realized he was not perfect during his military service, but he believes, if his commanders and fellow Soldiers were asked, they would affirm he was an upstanding Soldier who was willing to serve

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.

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

	a.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

   b.  Paragraph 3-7b states 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.  Paragraph 3-10 states a dishonorable discharge is given pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge be upgraded to general under honorable conditions.  With respect to the characterization of service:

	a.  The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He was given a dishonorable discharge pursuant to an approved sentence by a general court-martial empowered to adjudge such a discharge.  This type of court-martial was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

	b.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Clemency is not warranted in this case.

2.  His contention that he was set up by his roommate (entrapment) is rejected.  It is likely he raised this issue during his trial and, based upon the written findings of the appellate court, quite evident he included this issue during his appeal.  The U.S. Court of Military Review's memorandum opinion shows his arguments were considered but not accepted.  

3.  Based upon the foregoing, there is no basis upon which to grant the relief requested.

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)                                         AR20140014938



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ABCMR Record of Proceedings (cont)                                         AR20140014938



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