PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 27 November 2001
         DOCKET NUMBER: AR2001058597


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Lester Echols		Member
Mr. John T. Meixell		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

---

2. The applicant requests, in effect, that his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD).

3. The applicant states, in effect, that he was discharged for misconduct that did not affect his duty performance. He states that the quality of his service during the period of enlistment, while in confinement, and his excellent post service achievements and conduct warrant an upgrade of his discharge. He further states that discharges have been upgraded for soldiers in similar situations because they were too harsh given an individual’s overall record of service. The support for these upgrades was the individual’s overall quality of service and post service achievements and conduct. In support of his application, he submits numerous military documents attesting to his training, performance and conduct achievements while on active duty; five third party letters that petition for clemency, submitted by Army legal officials and members of his chain of command; individual award certificates; assorted documents that support his post service conduct and accomplishments; and his Certificate of Release or Discharge From Active Duty (DD Form 214).

4. The applicant’s military records show that on 6 May 1993, he was honorably separated for the purpose of immediate reenlistment after completing 2 years,
9 months, and 14 days of active military service. On 7 May 1993, he immediately reenlisted for 3 years and began the enlistment period under review.

5. He was trained and served in military occupational specialty (MOS) 91A (Medical Specialist) and that the highest rank he attained while serving on active duty was specialist/E-4 (SPC/E-4). During his active duty tenure he earned the following awards: Army Good Conduct Medal; Kuwait Liberation Medal (K); Kuwait Liberation Medal (SA); Southwest Asia Service Medal with 3 bronze service stars; and the National Defense Service Medal.

6. On 21 November 1994, the applicant was convicted by a general court-martial of conspiracy to violate a lawful regulation, six specifications of violating a lawful general regulation by wrongfully transferring a duty free item to a person not authorized duty free import privileges, and solicitation of another soldier to violate a lawful general regulation. The resultant sentence included a reduction to
private/E-1, confinement for 9 months, and a BCD. However, in accordance with a pre-trial agreement, that portion of the confinement sentence in excess of
6 months was suspended.

7. During the sentencing review process, the applicant’s commander, supervisor, former supervisor, trial counsel, and the military judge that presided at his trial submitted memoranda requesting that the BCD portion of the applicant’s sentence be suspended.

8. These support statements were based on the applicant’s ability to perform his duties as a special forces medic, his strong motivation for continued service, his awards and decorations, his demonstrated qualities for rehabilitation, and his initiative in dealing with the problems of other soldiers. In addition, they indicated that the lack of structure and rigid direct supervision in the special forces contributed to the applicant’s ability to commit the offenses and they likely would not have occurred had he been in a regular Army unit and operating under the normal supervision of a defined chain of command.

9. Pursuant to General Court Martial Order Number 9, dated 23 August 1995, issued by Headquarters, Eighth United States Army, the applicant’s sentence was finally affirmed and the BCD portion was ordered to be executed. Accordingly, on 26 April 1996 he was discharged accordingly after completing a total of 5 years, 3 months, and 17 days of creditable active military service and having accrued 175 days of time lost due to confinement.

10. According to the Manual for Courts-Martial, Table of Maximum Punishments, in effect at the time, the maximum punishment the applicant could have received was 16 years confinement, total forfeiture of pay and allowances, reduction to the rank of private (E-1), and a BCD or a dishonorable discharge, assuming none of the specifications were multiplicious for sentencing purposes.

11. Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.

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 law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted. 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 punishment imposed.

2. The record shows that the preponderance of the applicant’s service was honorable and it reveals no disciplinary infractions prior to the incidents that lead to his BCD. Further, the memoranda submitted to the convening authority during the sentence review process by members of his chain of command, trial counsel, and most importantly the trial judge all recommended leniency and suspension of the BCD portion of his sentence. These statements attest to the honorable nature of the preponderance of his service and in the opinion of the Board, they provide compelling support for clemency in this case.
3. The Board does not condone the applicant’s misconduct which clearly diminished the quality of his service below that meriting a fully honorable discharge. However, it does find that his overall record of service coupled with his post service good conduct and accomplishments are sufficiently mitigating to warrant clemency. Therefore, the Board concludes that it would be appropriate to upgrade his BCD to a general, under honorable conditions discharge by reason of misconduct.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the service with a general, under honorable conditions discharge by reason of misconduct on 26 April 1996, in lieu of the BCD of the same date he now holds; and by providing him a new DD Form 214 reflecting this change.

2. That so much of the application as in excess of the foregoing be denied.

BOARD VOTE:

__AAO__ _ _LE __ __JTM___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Arthur A. Omartian__
                  CHAIRPERSON

---

INDEX

CASE ID	AR2001058597
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/11/27
TYPE OF DISCHARGE	(BCD,)
DATE OF DISCHARGE	19960426
DISCHARGE AUTHORITY	AR 635-200, Chapter 3
DISCHARGE REASON	Court-Martial
BOARD DECISION	GRANT (PARTIAL)
REVIEW AUTHORITY
ISSUES 1. 92.17	106.00
2. 92.21
3. 94.05
4.
5.
6.