IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100024305 


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

2.  The applicant states he was a very young immature country boy when he entered the U.S. Army:

   a.  He states it was his dream to have a career in the military similar to that of his father who completed almost 30 years in the U.S. Coast Guard.

   b.  He asserts he was found guilty of a crime he never committed and that he "never touched anyone."  There were other men involved who were much bigger and stronger than him, they had much more experience in infantry tactics and jungle training, and they exerted their control over the younger men.
   
   c.  He was sent to prison for the actions of others, he was used as an example, and the Army failed to notify his parents about his situation at the time.

   d.  He has been released from the U.S. Disciplinary Barracks (USDB); however, he cannot tell anybody about the injustice that occurred while he was stationed in Panama because he is in fear of his life.

   e.  He is now a shell of a man who does not trust the U.S. Army and suffers from post-traumatic stress disorder, paranoia, and schizophrenia as a direct result of the incident that occurred in Panama.


3.  The applicant provides copies of 11 medical documents.

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 AR20090014026, on 16 March 2010.

2.  The applicant submitted medical statements which were not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 15 January 1980.  Upon completion of training he was awarded military occupational specialty 11B (Infantryman).

4.  The applicant was tried at a general court-martial and he was found guilty of rape.  On 21 October 1980, he was sentenced to be reduced to private (E-1), confinement at hard labor for 20 years, a forfeiture of all pay and allowances, and a dishonorable discharge from the service.

5.  On 22 May 1981, the convening authority approved the sentence, ordered the applicant's confinement in the USDB, Fort Leavenworth, KS, and directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

6.  On 11 February 1982, the U.S. Army Court of Military Review on consideration of the entire record, found ample support for the court members' finding the applicant guilty of rape either as an aider or abettor or as a participant, and concluded the applicant was guilty.  Accordingly, the findings of guilty were affirmed.  However, only so much of the sentence as provided for total forfeitures, a dishonorable discharge, and 11 years of confinement at hard labor was affirmed.  The Court denied the applicant's petition for a new trial.

7.  Headquarters, USDB, U.S. Army Combined Arms Center, Fort Leavenworth, KS, General Court-Martial Order Number 495, dated 12 July 1982, confirmed that the applicant's court-martial sentence, as modified, was affirmed.  The provisions of Article 71(c) having been complied with, the applicant was ordered to be confined in the USDB, Fort Leavenworth, KS.

8.  On 1 July 1982, the applicant filed a Petition for a New Trial.  On 30 July 1982, The Judge Advocate General of the Army denied the petition.  He also found no meritorious basis for initiating clemency action in the applicant's case.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was dishonorably discharged on 5 August 1982, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-1, as a result of court-martial (other):

   a.  He had completed 9 months and 3 days of net active service.

   b.  Item 29 (Dates of Time Lost During This Period) shows he had lost time under Title 10, U.S. Code, section 972, from 10 October through 12 October 1980 and from 21 October 1980 through 5 August 1982.

10.  In support of his request for reconsideration, the applicant provides copies of 11 medical-related documents created by the California Department of Corrections from 5 March 2006 to 5 May 2009.  They show the applicant's prescribed psychiatric medications and follow-up progress notes related to his medical conditions (i.e., a history of alcohol dependence, paranoia, and schizophrenia).

11.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR 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.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 11 (Dishonorable and Bad Conduct Discharge), paragraph 11-1, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of the appellate review and after such affirmed sentence has been ordered duly executed.

   b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request for an upgrade of his discharge should be reconsidered because he did not commit the crime and he now suffers from post-traumatic stress disorder, paranoia, and schizophrenia.

2.  The applicant's contention that he did not commit the crime was a matter that should have been considered and addressed during the general court-martial proceedings and during the appeal process.

3.  The applicant's trial by court-martial was warranted by the gravity of the offense for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

4.  There is no evidence in his official record, and the medical records that he provided are insufficient, to show he was suffering from any of the above medical conditions at the time he was convicted.  Thus, the medical records the applicant provided offer no mitigating evidence in this case.

5.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

6.  In view of the foregoing, there is no basis for granting the applicant's request.


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 AR20090014026, dated 16 March 2010.




      _______ _   _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)                                         AR20100024305



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ABCMR Record of Proceedings (cont)                                         AR20100024305



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