IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100027350 


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 earlier request for an upgrade of his bad conduct discharge. 

2.  The applicant states:

   a.  While it is true he enlisted in the Regular Army (RA) in July 2008, he originally enlisted in the U.S. Army Reserve (USAR) in June 1992 and then went on active duty in July 2008.

   b.  He did not serve as an infantry Soldier; he served in military occupational specialty (MOS) 95B (Military Police (MP)).
   
c.  He was convicted by a court-martial and sentenced to confinement.  While in confinement, he was a model inmate and did everything he was told to do.  He maintained his military bearings and did not show any disrespect.

d.  He also completed a bachelor's degree while in prison.

e.  Since he has been released from confinement he has been a model citizen and he continues to put the pieces of his life back together.

f.  He now has a good job, a happy family, and he is pursuing an advanced degree.

g.  Some of the records he is enclosing with this application should shed some light on how the fire was started.

h.  He has talked to some professionals who believe the cigarette he smoked could not have possibly started the fire.

i.  He believes the manner in which private first class (PFC) AGW stated that he set the fire is impossible.

j.  He does not believe PFC AGW was truthful when he stated that he set the fire and that experts agree with him.
 
k.  He has researched many other court-martial proceedings that have been proven to be wrong (he provides a listing of those cases).

3.  The applicant provides:

* General Court-Martial Order Number 4, dated 15 May 2008
* U.S. Military Court of Criminal Appeals notice and decision
* U.S. Court of Appeals for the Armed Forces order
* General Court-Martial Order 258, dated 20 November 2008
* DD Form 2707 (Confinement Order)
* DA Form 4187 (Personnel Action - Duty Status)
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* DA Form 4430 (Department of the Army Report of Result of Trial)
* Orders 365-7 (MOS orders)
* Bachelor of Science Diploma
* Certificates of training and/or achievement
* MP School Diploma
* Letter from a supervisor at the Fort Knox Directorate of Public Works (DPW)
* Defense attorney post-trial submission memorandum
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 16 January 2009 and 14 October 1992
* Enlisted Record Brief (ERB)
* Multiple DA Forms 4856 (Developmental Counseling Checklist)
* Multiple sworn statements and/or affidavits
* Correctional Facility Sentence Transaction Report




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 AR20100009495, on 28 September 2010.

2.  The applicant submitted the below documents which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and as such warrant consideration by the Board.

* Bachelor of Science diploma
* Certificates of training and/or achievement
* MP School diploma and MOS orders
* Letter from a supervisor at the Fort Knox DPW
* Multiple DA Forms 4856
* Multiple sworn statements and/or affidavits
* Correctional Facility Sentence Transaction Report

3.  His records show he initially enlisted in the USAR on 17 September 1991.  He subsequently entered active duty for training (ADT) on 10 June 1992, completed the training requirements, and he was awarded MOS 95B.  On 14 October 1992, he was honorably released from ADT and assigned to the 352nd MP Company, Oakdale, PA. 

4.  His records also show he enlisted in the RA for 3 years on 1 July 1998 and followed that with a 3-year reenlistment on 22 July 2000.  He was promoted to sergeant (SGT)/E-5 on 7 November 2001.  

5.  He reenlisted in the RA in the rank/grade of SGT/E-5 for a period of 6 years on 23 July 2002.  He was initially assigned to the U.S. Army Command and General Staff College, Fort Leavenworth, KS, and later served in Vicenza, Italy.  Additionally, on 8 November 2006, he reenlisted for 6 years. 

6.  On 11 May 2005, the U.S. Army Criminal Investigation Command (CID), Vicenza Resident Agency, investigated the applicant for bigamy.  The CID investigator interviewed various individuals and obtained several sworn statements.  The investigation established probable cause to believe the applicant committed the offense of bigamy when he was married to Mrs. AR, Mrs. LGR, and Mrs. CR at the same time.  

7.  On 25 October 2005, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for making two false statements and uttering a worthless check.  

8.  On 5 May 2007, a flag was initiated against the applicant for adverse action and on 23 August 2007, at Fort Myer, VA, court-martial charges were preferred against him for:

* one specification of conspiring with another Soldier (PFC AGW) to commit simple arson by setting fire to Mrs. CR's automobile
* one specification of conspiring with another Soldier to set fire to an automobile with the intent to defraud by setting fire to Mrs. CR's automobile
* one specification of willfully and maliciously setting fire to Mrs. CR's automobile
* one specification of willfully and maliciously setting fire to an automobile with the intent to defraud the insurer
* one specification of wrongfully and recklessly engaging in conduct likely to cause death or grievous bodily harm
* two specifications of wrongfully soliciting another Soldier to set fire to an automobile

9.  On 4 January 2008, at Fort Belvoir, VA, he was convicted by a general court-martial of one specification of conspiring with another Soldier to burn with intent to defraud by setting fire to an automobile and one specification of willfully and maliciously setting fire to an automobile with the intent to defraud the insurer.  The court sentenced him to be reduced to the lowest enlisted grade, a forfeiture of all pay and allowances, confinement for 24 months, and a bad conduct discharge.

10.  On 29 January 2008, the applicant's duty status was changed from "present for duty" to "confinement - military authorities."

11.  A DA Form 4430 was initiated and submitted to the General Court-Martial Convening Authority.  On 15 May 2008, he approved the sentence, except for the bad conduct discharge, and ordered the sentence executed.  

12.  On 31 July 2008, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

13.  On 3 November 2008, the U.S. Court of Appeals for the Armed Forces denied his petition for a grant of review. 

14.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 258, dated 20 November 2008, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

15.  Accordingly, he was discharged from the Army on 16 January 2009.  His
DD Form 214 shows he was discharged under the provisions of chapter 3, Army Regulation 635-200, as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 9 years, 6 months, and 3 days of creditable active military service with 378 days of lost time.

16.  On 28 September 2010, the Army Board for Correction of Military Records (ABCMR) denied his petition for an upgrade of his bad conduct discharge to a general discharge

17.  He submitted:

	a.  Multiple counseling statements with various dates in 2006 and 2007 that show he was counseled by members of his chain of command regarding his outstanding performance and potential for promotion.

	b.  Multiple sworn statements, dated on various dates in 2007, from several individuals regarding the fire.

	c.  A diploma, dated 30 June 2007, awarding him a Bachelor of Science in Criminal Justice.

	d.  Multiple certificates of training and/or achievement in recognition of completion of specialized training or achievement.

	e.  A letter, dated 28 February 2008, from a DPW supervisor at Fort Knox, KY, wherein he recommended the applicant's parole.

	f.  Defense counsel's post-trial submission, dated 14 May 2008, wherein the defense counsel asked the convening authority to reduce the applicant's confinement sentence and waive the automatic forfeiture of pay.

	g.  A sentence transaction report that shows he earned work abatements on multiple occasions. 

18.  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.

19.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  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.  

20.  Army Regulation 635-200, 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 his bad conduct discharge should be upgraded.

2.  The evidence of record shows he was convicted by a general court-martial of one specification of conspiracy to burn an automobile with intent to defraud the insurer and one specification of willfully and maliciously setting fire to an automobile with intent to defraud the insurer.  His trial by a general court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which he was convicted.

3.  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 punishment imposed.  Given the applicant's undistinguished record of service and 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.

4.  The applicant requests that the facts relating to the manner in which PFC AGW started the fire be reviewed, because he does not believe PFC AGW's version of the facts but he did not provide any evidence to support this assertion. Additionally, his dispute in relation to the facts attributed to PFC AGW was within the purview of the court-martial and appellate process which after reviewing these facts convicted him and affirmed his conviction.

5.  His achievements while in confinement and after his discharge as well as his endeavor to put his life together were considered.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  

6.  After a review of the available evidence it is clear his service did not meet the criteria for a general or an honorable discharge.  Therefore, he is not entitled to the requested relief.

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 AR201000009495, dated 28 September 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)                                         AR20100027350



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ABCMR Record of Proceedings (cont)                                         AR20100027350



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