IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER: AR20080005741
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, in effect, requests reconsideration of that portion of the Army Board for Correction of Military Records (ABCMR) decision that denied entitlement to back pay and allowances based on the restoration of his rank and pay grade and the upgrade of his bad conduct discharge.
2. The applicant states the ABCMR decision stated that clemency in the upgrading of his discharge was granted solely on equity. He further states that it would also be equitable to grant him back pay and allowances because other Soldiers involved were able to keep their pay grades and therefore keep their pay and allowances.
3. The applicant provides, through his Congressional representative, a copy of ABCMR Docket Number AR20050003067, dated 31 January 2006, and ABCMR Docket Number AR20070006866, dated 4 March 2008, in support of his application.
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 AR20070006866, on 4 March 2008.
2. In the original findings, the Board found the applicant's bad conduct discharge, with reduction to E-1, was affirmed through the appellate process and he was properly discharged and reduced in grade. This made his reduction valid at the time of his discharge. However, the ABCMR determined the applicant's grade should be restored to specialist/pay grade E-4 based on the Board's previous determination to upgrade the applicant's discharge from a bad conduct discharge to a general discharge under honorable conditions.
3. The Board determined that because the discharge upgrade action did not impact the original court-martial sentence and/or the discharge and reduction actions, the applicant was not entitled to back pay and allowances.
3. The applicant has not submitted any evidence that was not previously contained in his military service records and previously reviewed. However, he has submitted a new argument which requires that his case be reconsidered by the ABCMR.
4. The applicant argues that it would be equitable to grant him back pay and allowances because other Soldiers involved were able to keep their pay grades and their pay and allowances.
5. ABCMR Docket Number AR20050003067 granted the applicant an upgrade from a bad conduct discharge to a general discharge under honorable conditions. This upgrade was granted as a matter of clemency. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.
6. Article 58a of the Uniformed Code of Military Justice provides, in pertinent part, that a court-martial sentence of an enlisted member in pay grade above
E-1, as approved by the convening authority, that includes a bad conduct discharge reduces that member to pay grade E1, effective on the date of that approval. Article 58a further provides that if the sentence of a member who is reduced in pay grade under this provision is set aside or disapproved, the rights and privileges of which he was deprived because of that reduction shall be restored to him and he is entitled to the pay and allowances to which he would have been entitled for the period the reduction was in effect, had he not been so reduced.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he should receive back pay and allowances based on his restoration of grade granted by the ABCMR based on equity and the fact that the other Soldiers involved in the incident were not reduced in grade.
2. This Board considers each case individually on its own merit. Therefore, actions or inactions taken against other individuals are not a basis for granting relief in this case.
3. The actions taken by the Board to upgrade the applicant's discharge and to restore his grade did not set aside or disapprove the original court-martial sentence. The actions merely lessened the severity of the punishment imposed based on clemency. Therefore, the applicant is not entitled to back pay and allowances.
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 to amend the decision of the ABCMR set forth in Docket Number AR20070006866, dated 4 March 2008.
___________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) AR20080005741
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ABCMR Record of Proceedings (cont) AR20080005741
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