RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 August 2007
	DOCKET NUMBER:  AR20060014659 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Gerald E. Vandenberg

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Robert W. Soniak

Member

Ms. Karmin S. Jenkins

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his bad conduct discharge (BCD) be upgraded to general under honorable conditions (GD).

2.  The applicant states, in effect, that his discharge was both improper and unjust.  He was convicted of the wrong crime as it relates to the assault, although he admits to being guilty of conspiracy to assault.  He believes that the difference in the charge of assault vs conspiracy to commit assault warrants a lesser punishment and notes that none of the individuals who actually assaulted the individual received worse than nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice.  

3.  He states that while he did steal the medals, it was as a prank and the result of an ongoing drug and alcohol problem.  He feels that the discharge is unjust since he had a "spotless" record prior to the two offenses, which occurred within the same week and were the result of bad judgment and the effects of drugs and alcohol.  

4.  He relates that he turned himself in for his offenses and assisted in the investigation of both crimes.  His service before the offenses and during his confinement was without incident and he participated in a research study.  He has been drug free for 19 years and been a productive citizen and a good father and husband.

5.  The applicant provides two personal statements, copies of three character reference letters describing his character and recent social activities, his 3 April 1986 DD Form 214 (Certificate of Release or Discharge From Active Duty), and seven documents from his service personnel file related to his discharge and appeals.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be afforded clemency due to personal growth, recovery from substance abuse, and his post service behavior and good citizenship.

2.  Counsel states that the applicant served honorably for the majority of his period of service as a military policeman; however, due to a preexisting substance abuse problem and the nature of his duty he committed the acts that led to his BCD.

3.  Counsel further avers that the applicant’s punishment was inequitable in that others involved did not receive the same punishment.  Out of six Soldiers involved, only the applicant and one other were court-martialed, two received NJP, one was sent for retraining, and the last was acquitted.

4.  Counsel provides no additional supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The records show the applicant enlisted under the Delayed Entry Program on 5 November 1979.  He entered active duty on 11 September 1980, completed training, and was awarded the military occupational specialty (MOS) 95B (Military Police).  

2.  At the time of the applicant’s enlistment he swore that he had never been involved in the possession, purchase, or use of any illegal drugs or chemicals. 

3.  The applicant received a Letter of Appreciation for participation in a research study between 12 and 30 March 1981.

4.  The applicant’s second duty assignment was with the 109th Military Police (MP) Detachment in Frankfurt, Germany, commencing on 8 March 1982.

5.  On or about 10 July 1982 the applicant was party to the theft of Army medals from a government display case.

6.  On or about 19 July 1982, the applicant was a party to assaults on two German nationals.

7.  On 31 January 1983 a general court-martial found the applicant guilty of assault on a German national and theft of Army medals.  He was found not guilty of a second assault charge.  His adjudged punishment was reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 6 months, and a BCD.

8.  A question was raised, during the trial, as to whether or not the Commander, V Corps was disqualified to act as the convening authority.  The case was transferred to the Commander, 3rd Armored Division to act as convening authority for the finalization of the case.

9.  The findings and sentence were approved by the Commander, 3rd Armored Division on 28 April 1983 and, except for the BCD, the sentence was ordered to be executed.

10.  The applicant’s case was forwarded to The Judge Advocate General of the Army for review by the Army Court of Military Review (ACMR).

11.  On 14 June 1983, based on the applicant’s conduct in confinement, 13 days of his sentence to confinement was remitted and it was recommended that, having completed 76 percent of his sentence, he be released from confinement and placed on excess leave, effective 17 June 1983.

12.  On 17 June 1983, the applicant was placed on involuntary excess leave pending completion of the appellant review.  He acknowledged that he was not entitled to any pay or allowances while in an excess leave status.

13.  The ACMR reviewed the applicant’s case on 30 November 1983.  It was determined that there were irregularities or questions as to the disqualification of the convening authority.  The ACMR directed that the 28 April 1983 actions be set aside, and that the case be returned via The Judge Advocate General for a new review and action by a different staff judge advocate and convening authority.

14.  The applicant’s case was reviewed by the United States Army Correctional Activity (USACA), Fort Riley, Kansas.  USACA General Court-Martial Order Number 264.1, dated 23 May 1985, directed that the accused was credited with that portion of his punishment served from 31 January 1983 to 30 November 1984, reducing his sentence to confinement to 138 days.

15.  The applicant’s case was again referred to the ACMR and on 27 November 1985, the findings of guilty and sentence were affirmed.

16.  There is no indication the applicant appealed the ACMR decision to the Court of Military Appeals.

17.  The findings and sentence were affirmed and ordered to be executed in accordance with USACA General Court-Martial Order Number 240.  

18.  The applicant was discharged with a BCD on 3 April 1986.  He had 5 years, 2 months, and 6 days of creditable service; 4 months and 15 days of lost time due to confinement; and 2 years, 9 months, and 22 days in excess leave status.

19.  In his personal statements, the applicant states he was approached by several other MPs to harass some German nationals who were soliciting sex from patrons of a public restroom.  He agreed to stand guard outside and did not know that the harassment would turn violent.  A week later under the influence of drugs and alcohol he agreed, as a prank, to take medals from a display case at the V Corps Headquarters.  He states he turned himself in and agreed to assist the authorities in the investigation of both crimes.  He admits he is guilty of conspiracy to commit harassment, theft, and drug abuse.  He states that he is a member of his local church and does work in the church.  He is also a member of Narcotics Anonymous of Michigan in several capacities and believes that his post service rehabilitation combined with his otherwise good service warrants an upgrade.

20.  Pastor J____ D____, of the East Washington Church, states the applicant had started attending their church in January 2006, taking part in the Sunday school and morning worship.  He was involved in intense spiritual counseling program to help the applicant become free from his “past baggage.”  The applicant was described as self-disciplined and making a positive difference in people’s lives.

21.  Reverend C____ B____ states that she has known the applicant since 1988. The applicant and her husband have been friends for 25 years and had related stories of their involvement with drugs and alcohol during high school.  She states that the applicant got married and has held a steady job during the entire time she has known him.  She describes the applicant as a productive and responsible member of his church and society.

22.  R____ L____, currently a correctional officer, relates that he and the applicant grew up together.  During high school the applicant was a drug and alcohol user who was frequently in trouble, including being kicked out of school for possession of marijuana just weeks before graduation.  He did complete his degree through an adult education program.  They lost contact while the applicant was in the Army but following his discharge the applicant returned to their home town for a short time before moving to Texas.  While in Texas he got into trouble because of drugs and alcohol.  In 1987 he moved back to Michigan and became involved with Narcotics Anonymous and has made a drastic change in his life.  The applicant is now working to assist others to overcome similar problems.  Mr. B___ is proud to again call the applicant his friend.



23.  The Uniform Code of Military Justice provides the policy and procedures for the administration of military justice and delineates offenses for which a person governed by military regulations may be punished.  Specific Articles related to this case include but are not limited to the following:

a.  Article 81 (Conspiracy) states any person who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.  An overt act by one conspirator becomes the act of all 
without any new agreement specifically directed to that act and each conspirator is equally guilty even though each does not participate in, or have knowledge of, all of the details of the execution of the conspiracy; and,

	b.  Article 128 (Assault) states that any person who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, (emphasis added) is guilty of assault and shall be punished as a court-martial may direct.  Further, any one who commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or commits an assault and intentionally inflicts grievous bodily harm with or without a weapon; is guilty of aggravated assault and shall be punished as a court-martial may direct. 

24.  The Manual for Courts-Martial, then in effect, and the current edition, both state that voluntary intoxication not amounting to legal insanity, whether caused by alcohol or drugs, is not an excuse for an offense committed while in that condition.

25.  Army Regulation 635-200 (Personnel Separations Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  Chapter 3, in effect at the time, outlines the criteria for characterization of service and the type of discharge certificate issued.  

a.  Paragraph 3-7a states that an honorable discharge (HD) 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.  Paragraph 3-7b state that a general discharge (GD) 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.  Paragraph 3-11 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.  

26.  The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

DISCUSSION AND CONCLUSIONS:

1.  The issue of whether the applicant should have been charged with assault or the charge of conspiracy to commit assault is a procedural issue that was or should have been addressed at the time of the court-martial and ACMR review.  

2.  The applicant's contentions related to evidentiary and procedural matters at the court-martial, which were adjudicated finally and conclusively in the court-martial trial and appellate review process, furnish no basis for recharacterization of the discharge.

3.  The applicant admitted to being a party to the harassment of homosexuals, that culminated in their being assaulted, but contends that he did not know that the assault was going to occur nor did he participate in the actual assault; he only acted as the lookout.  While he himself may or may not have actually laid a hand on the victim does not matter, he was a party to both the preplanning of the act and actively participated in the assault by acting as the lookout.  Under the description of assault under Article 128 he is guilty of assault.  

4.  Furthermore, he was found guilty of assault and his present protestations of innocence serve only to show that he is currently minimizing his responsibility.

5.  By virtue of their positions or training, some Soldiers are and must be held to higher standards then the average Soldier.  Personnel acting as Military Police are one of these special categories by virtue of the fact that it is their job to enforce the law.  The applicant's behavior constituted a betrayal of the special trust and confidence placed in him as a Military Policeman.  

6.  Further, the fact that he participated in a medical special study does not outweigh the violation of the special trust placed in him as an MP to uphold the law. 

7.  The applicant’s so called “spotless” record appears to have started with a lie.  At the time he enlisted he swore that he had not purchased, sold, used, possessed, or had been in any trouble as a result of illegal drugs or alcohol.  This statement is contradicted by the statements submitted on his behalf.

8.  The applicant contends that drugs and or alcohol were factors in the offenses; however, the record contains no documentation to support that the applicant was under the influence of drugs or alcohol at the time he committed the acts.  Further, drug or alcohol abuse is not a valid defense for committing such offenses.  An indication that intoxication is a legally inadequate defense, both in the military and in society as a whole, is demonstrated by the fact that drunk drivers are held legally responsible for the results of their behavior even though they are shown to be an alcoholic.

9.  While the applicant’s candid admission of a drug problem and the positive actions he has taken to overcome that problem and assist others to do the same it noted, these efforts are not so meritorious as to outweigh the offenses that led to his discharge.

10.  The letters attesting to the applicant’s good character and post-service adjustment and conduct is also noted, but they too are insufficient as the basis for relief because they do not appear to outweigh the misconduct that led to the applicant’s separation.  

11.  Trial by general court-martial was warranted by the serious nature of the offenses charged.  The conviction is final and the sentence is commensurate with the misconduct of which the applicant was convicted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RWS__  __KSJ __  __CLG___  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.




____Curtis L. Greenway _
          CHAIRPERSON


INDEX

CASE ID
AR20060014659
SUFFIX

RECON
 
DATE BOARDED
20070802 
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19860403
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.