IN THE CASE OF: BOARD DATE: 10 April 2012 DOCKET NUMBER: AR20110016611 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 his dishonorable discharge be upgraded to a general discharge. 2. He states he needs his discharge upgraded so he may receive medical treatment from the Department of Veterans Affairs due to being exposed to tuberculosis while he was in the military. 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 4 June 1982. The highest rank/pay grade he attained while serving on active duty was specialist four/E-4. However, he held the rank/pay grade of private/E-1 at the time of separation. 3. General Court-Martial Order Number 9 published by Headquarters, U.S. Army Infantry Center and Fort Benning, GA, dated 20 March 1987, shows that on 19 February 1987 the applicant was found guilty at a general court-martial of two specifications of violating Article 112a of the Uniform Code for Military Justice (UCMJ) by: * wrongfully introducing cocaine onto a military installation on 16 October 1986 * wrongfully distributing cocaine on 18 October 1986 4. On 19 February 1987, the following sentence was adjudged: * reduction to the lowest enlisted grade * confinement for 26 months * a forfeiture of all pay and allowances * dishonorable discharge 5. On 20 March 1987, only so much of the sentence as provided for a dishonorable discharge, confinement for 25 months, a forfeiture of all pay and allowances, and reduction to the grade of E-1 were approved and, except for the dishonorable discharge, was ordered to be executed. 6. On 29 May 1987, 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 224 published by U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, KS, dated 12 August 1988, 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 29 August 1988 under the provisions of paragraph 3-10, Army Regulation 635-200 (Personnel Separations), due to conviction by a court-martial. This form also shows his character of service as "Dishonorable." 9. References: a. 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. b. Army Regulation 635-200 provides that an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a special or general court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed. c. 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. Therefore, there is no legal basis for granting the applicant's request for relief. 2. 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. 3. The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for medical benefits. 4. In view of the foregoing, there is no basis for granting the applicant's request. 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) AR20110016611 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110016611 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1