RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 January 2008
	DOCKET NUMBER:  AR20070009593 


	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

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Mr. Hubert O. Fry

Chairperson

Mr. John T. Meixell

Member

Mr. Rowland C. Heflin

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 reconsideration of his earlier request for an upgrade of his discharge.

2.  The applicant states that he provides new evidence to show that his sentence to a bad conduct discharge (BCD) was not to be executed.  A corrected copy of General Court-Martial Order Number 1, dated 14 February 1997, states, “The sentence is approved AND EXCEPT (emphasis in the original) for the sentence extending to a bad conduct discharge, will be executed.”  Court-martial orders dated 6 May 1999 also state this.  

3.  The applicant provides a portion of Headquarters, U. S. Army, Japan/9th Theater Army Area Command (TAACOM) General Order Number 1, dated       14 February 1997; and a portion of Headquarters, U. S. Army Field Artillery Center and Fort Sill General Court-Martial Order Number 56 (partially illegible, possibly “58”), dated 6 May 1999.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060006468 on 12 December 2006.

2.  The applicant provides new evidence and new argument that will be considered by the Board.

3.  After having had prior service in the U. S. Army Reserve, the applicant enlisted in the Regular Army on 11 August 1994.  

4.  At a general court-martial on 26 November 1996, the applicant entered mixed pleas to numerous offenses under the Uniform Code of Military Justice.  He was found guilty of:  attempted destruction of mail (Charge I/specification); making and signing a false official statement (Charge II/specification); adultery between on or about 1 March 1996 and 1 April 1996 (Charge V/specification 1); adultery between on or about 15 February 1996 and 1 March 1996 (Charge V/Specification 2); wrongfully taking certain mail matter (Charge V/  specification 4); wrongfully opening and/or stealing certain mail matter (Charge V/specification 5); and willfully and unlawfully taking a public record with intent to remove and destroy (Charge V/specification 6).

5.  Other charges had been dismissed by the military judge or, later, by the Army Court of Criminal Appeals (ACCA).

6.  The applicant’s adjudged sentence was confinement for 3 months, a forfeiture of $300.00 pay per month for 3 months, a reduction to the grade of E-1, a reprimand, and a BCD. 

7.  The convening authority approved the sentence and, except for the part of the sentence extending to a BCD, ordered the sentence executed.

8.  The applicant's record of trial contained a copy of a "corrected copy" of his court-martial order.  Page 2 of the court-martial order indicated that he was reprimanded on the same day of his court-martial for the offenses of attempted destruction of mail, false official statement, larceny, adultery, wrongful taking of mail, wrongfully opening and/or stealing of mail, and unlawfully taking a public record.  It also contained his reprimand.

9. On 29 June 1998, the ACCA determined that the military judge abused his discretion when he denied the trial defense counsel’s request to individually voir dire two members.  The ACCA affirmed the findings of guilty (except Charge IV and its specification, which was set aside and dismissed), set aside the sentence, and authorized a rehearing on the sentence.  

10.  On 28 January 1999, a military judge sitting as a general court-martial at the sentence rehearing sentenced the applicant to a BCD and a reprimand.  On        6 May 1999, the convening authority approved the sentence and, except for the BCD, ordered the sentence executed.  He also ordered that the applicant be credited with any portion of the punishment from 26 November 1996 to 29 June 1998 under the sentence adjudged at his former trial.

11.  On 27 August 1999, ACCA affirmed the applicant’s new sentence.  

12.  Headquarters, U. S. Army Field Artillery Center and Fort Sill General Court-Martial Order Number 34, dated 8 (partially illegible, possibly “18”) March 2000, ordered the applicant’s BCD executed.

13.  On 3 April 2000, the applicant was discharged, with a BCD, pursuant to the approved and affirmed sentence of the general court-martial.  

14.  The Manual for Courts-Martial, United States, Rule for Court-Martial (RCM) 1113 states no sentence of a court-martial may be executed unless it has been approved by the convening authority.  A dishonorable or a bad conduct discharge may be ordered executed only after a final judgment within the meaning of RCM 1209 has been rendered in the case.  RCM 1209 states, in part, that a court-martial conviction is final when review is completed by a Court of Criminal Appeals and:

(A) the accused does not file a timely petition for review by the Court of Appeals for the Armed Forces and the case is not otherwise under review by that court; 

(B) a petition for review is denied or otherwise rejected by the Court of Appeals for the Armed Forces; or 

(C) review is completed in accordance with the judgment of the Court of Appeals for the Armed Forces and 

(i) a petition for a writ of certiorari is not filed within the time limits 
prescribed by the Supreme Court; 

(ii) a petition for writ of certiorari is denied or otherwise rejected by 
the Supreme Court; or

(iii) review is otherwise completed in accordance with the 
judgment of the Supreme Court.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that a corrected copy of general court-martial orders dated 14 February 1997 and general court-martial orders dated 6 May 1999 stated his sentence was approved and except for the sentence extending to a BCD would be executed.  

2.  Those two court-martial orders were worded correctly in accordance with RCM 1209.  The convening authority could not approve the applicant’s sentence to a BCD until after the ACCA affirmed his sentence, which it finally did on 27 August 1999.

3.  The convening authority then ordered the applicant’s sentence to a BCD to be executed with Headquarters, U. S. Army Field Artillery Center and Fort Sill General Court-Martial Order Number 34, dated “8” March 2000.  On 3 April 2000, he was properly discharged, with a BCD, pursuant to the sentence of the general court-martial.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__hof___  __jtm___  __rch___  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 to amend the decision of the ABCMR set forth in Docket Number AR20060006468 dated 12 December 2006




___Hubert O. Fry______
          CHAIRPERSON




INDEX

CASE ID
AR20070009593
SUFFIX

RECON

DATE BOARDED
20080117
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
105.00
2.

3.

4.

5.

6.