IN THE CASE OF:	  

		BOARD DATE:	  	  30 September 2008

		DOCKET NUMBER:  AR20080009780


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, in effect, that his special court-martial conviction on 17 August 1989 be overturned and that he be compensated for any loss of good credit, loss of money, and loss of innocence.  

2.  The applicant states that his chain of command obstructed justice by interfering with his choice of lawyers.  His lawyers were removed and his five witnesses were bribed and denied the right to testify on his behalf.  He states the court-marital was never approved at brigade level.  He alleges, in effect, that he was threatened, intimidated, and embarrassed by military personnel prior to these charges.  

3.  The applicant provides no additional documents in support of his 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.  After having had prior active and inactive service, the applicant enlisted in the Regular Army on 22 October 1987.  His highest grade held was specialist four, E-4.

3.  On 16 January 1990, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for showing disrespect to a sergeant (SGT) and for disobeying a lawful order from a SGT.

4.  On 27 August 1990, the applicant was convicted by a special court-martial of two specifications of disobeying a lawful order; being disrespectful in language to a noncommissioned officer (NCO); and three specifications of failing to go to his appointed place of duty.  He was sentenced to confinement for 45 days, a forfeiture of $482.00 pay per month for 2 months, reduction to private, E-1, and to be discharged with a bad conduct discharge.  

5.  On 5 October 1990, the sentence was approved.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.  

6.  On 25 February 1991, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

7.  On 3 July 1991, the sentence having been affirmed pursuant to Article 66 and Article 71(c) having been complied with, the sentence was ordered to be executed.  

8.  The applicant was discharged on 29 July 1991 under the provisions of Army Regulation 635-200, chapter 3, section IV as a result of court-martial.  He had served 3 years, 8 months, and 2 days of creditable active service during the period under review.  

9.  On 1 October 1993, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.  

10.  On 17 December 1998, the ABCMR denied the applicant’s request for an upgrade of his bad conduct discharge to honorable, and to restore all his benefits, leave and pay.  

11.  On 14 November 2005, the ADRB upgraded the applicant’s bad conduct discharge to fully honorable and did not change the narrative reason for discharge.  

12.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation 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.

13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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 service record shows he was convicted by a special court martial of two specifications of disobeying a lawful order; being disrespectful in language to a noncommissioned officer (NCO); and three specifications of failing to go to his appointed place of duty.  As a result of his court-martial, he was discharged on 29 July 1991 under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial.  

2.  The applicant’s request that his special court-martial be overturned was noted.  However, by law, this Board cannot disturb the finality of a court-martial conviction.  

3.  It is noted that the ADRB upgraded the applicant’s character of service to fully honorable; however, the ADRB did not change the reason for his separation. It should be noted that the applicant lost any right of review by the ADRB when the ABCMR considered but denied the applicant’s request for relief in 1998.  The ABCMR is the final board of review by law, its decisions are final and binding on the Army and may only be challenged in Federal Court.  However, this does not mean the ABCMR now will restore his bad conduct discharge.  As a matter of policy, the ABCMR will not make a correction of a record if so doing works to the detriment of an applicant without the consent of the applicant.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____XX___  ____XX____  ___XX_____  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.




      _______ _   __XXXX_____   ___
               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)                                         AR20080009780



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ABCMR Record of Proceedings (cont)                                         AR20080009780



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