IN THE CASE OF:  

		BOARD DATE:  4 August 2015	  

		DOCKET NUMBER:  AR20140021514 


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 (DD).

2.  The applicant states, in effect, over the past 20 years he has repeatedly requested that the Army Clemency Board review his discharge with no response. He also contacted the Disciplinary Barracks for relief in conjunction with other requests and received no response.  

3.  The applicant provides copies of a 1991 DD Form 149 (Application for Correction of Military Record), 61 pages of service records, and 10 pages of post-service academic records.

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 30 January 1986 with he had prior honorable service from 30 January 1986 to 28 June 1988 and from 
29 June 1988 to 25 November 1991.  He was promoted to sergeant/E-5 on 
1 June 1991.

3.  In August 1991, the applicant requested that the ABCMR change his date of rank.  On 27 November 1991, the U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison advised the ABCMR that the applicant’s request was administratively closed because the necessary documentation needed to support his request was not received by that center.  The recommendation was that the applicant’s request be returned without action and that he be advised to submit a new application with the necessary documentation.  The outcome of this request is not included in the available records.  

4.  On 2 March 1994, a general court-martial found the applicant guilty, contrary to his pleas, of wrongfully transporting a loaded firearm under the front seat of his motor vehicle and introducing 222.5 grams of marijuana onto a military installation with intent to distribute.  He was sentenced to reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for 3 years and 6 months, and a DD.

5.  In General Court-Martial Order Number 22, dated 21 November 1994, the general court-martial authority approved the court-martial finding and sentence and directed that, except for the DD, the sentence be executed.

6.  The applicant received administrative parole on 15 June 1995.

7.  On 21 December 1995, the U.S. Army Court of Criminal Appeals determined the findings of guilty and sentence, as approved, were correct in law and fact and affirmed the findings and sentence. 

8.  On 25 April 1996, Article 71(c) of the Uniform Code of Military Justice having been complied with, the DD was ordered executed. 

9.  The applicant was issued a DD on 10 May 1996.  He had 8 years, 1 month, and 12 days of creditable active service.  He also had lost time from 2 March 1994 to 25 November 1995 and from 26 November 1995 to 10 May 1996 (which was after his normal expiration term of service date).  His awards are shown as the Good Conduct Medal (2nd Award), National Defense Service Medal, Army Achievement Medal (2nd Award), Meritorious Service Medal, Southwest Asia Service Medal with 2 bronze service stars, Kuwait Liberation Medal - Saudi Arabia, Kuwait Liberation Medal - Kuwait, Noncommissioned Officer Professional Development Ribbon with Numeral 2, and the Army Service Ribbon.
10.  Other than the 1991 application for a change of his date of rank, there is no evidence the applicant made a request to this agency.  

11.  The applicant provides documentation of post-service training showing completion of several technology courses, an Associate’s degree in General Studies, Associate of Applied Science (Paralegal) degree), Undergraduate Certificate in Homeland Security, and a Bachelor of Arts degree in Criminal Justice.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. 

	b.  A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  A Soldier will be given a DD pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  

13.  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 was issued a DD by reason of a general court-martial conviction for wrongfully transporting a loaded firearm under the front seat of his motor vehicle and possession of marijuana with intent to distribute.  He exercised his legal rights at that time and the U.S. Army Court of Criminal Appeals affirmed the findings and sentence of the general court-martial.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offence for which he was court-martialed and discharged.

3.  The applicant has not provided and the record does not contain any evidence that he previously applied for an upgrade of the characterization of his service.  

4.  He provides no rationale for upgrading his discharge except that he has allegedly been repeatedly requesting an upgrade for the past 20 years without any response.  

5.  The applicant's post-service education is noted but it does not mitigate the offenses that led to his DD nor is it a basis for clemency in this case.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20140021514



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ABCMR Record of Proceedings (cont)                                         AR20140021514



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