IN THE CASE OF:	   

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110009155 


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:

* an upgrade of his bad conduct discharge to a general discharge
* a reduction of his felony fraud conviction to a misdemeanor

2.  The applicant states the bad conduct discharge was too harsh, inequitable, excessive, unbalanced, and unfair.  It did not take into account extenuating circumstances.  The felony conviction was excessive and harsh and it did not take into account his 28 months of superior service.  He is now a successful business owner and employer with good standing in the community.  He specifically states:

* the punishment was extreme and disproportionate in light of his 28 months of superior performance and outstanding service
* the court-martial was based on alleged insurance fraud with no reimbursement ever paid to him
* the discharge did not take into consideration his permanent physical injury and medication or his repeated attempts to be discharged for medical reasons
* the discharge did not take into consideration that the witness who testified against him was German and was potentially involved in the scheme
* the discharge did not take into account the events that he reported to the Inspector General and led to his car being vandalized
* the court-martial did not take into consideration his family crisis

3.  The applicant provides:

* self-authored letter
* multiple certificates of training and/or training records
* multiple certificates of achievement
* DA Form 31 (Request and Authority for Leave)
* request for reassignment or reclassification
* notification of and personal statement to the Military Occupational Specialty (MOS) Medical Retention Board (MMRB)
* final court-martial order
* separation orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* passport
* driver's license
* social security card

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.  The applicant's records show he enlisted in the Regular Army on 14 May 1987.  He completed basic combat training at Fort Jackson, SC, where he was presented with a superior performance certificate.  He completed advanced individual training at Fort Sill, OK, where he was recognized as the distinguished honor graduate.  He was awarded MOS 15E (Pershing Missile Crewmember).

3.  Subsequent to completion of MOS training, he was reassigned to Germany on 18 October 1987.  He was assigned to Battery B, 4th Battalion, 9th Field Artillery. 
While in Germany, he received multiple certificates of achievement and completed multiple training courses.

4.  It appears he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice in or around March 1988 for what he alleges as defending himself from an unprovoked attack by a person under the influence of alcohol.  The NJP record is not available for review.

5.  It also appears he complained to the Inspector General (IG) about his punishment based on a previously-issued physical profile that restricted his activities.  A memorandum from the IG, Headquarters, 56th Field Artillery Command, Germany, dated 23 March 1988, responded to his complaint and advised him that a physical profile was binding on him but not his commander.  As long as there was a bona fide military necessity, his commander had authority to require him to perform unlimited duty.

6.  On 7 November 1988, he was issued a physical profile for degenerative arthritis in his lower back.  His records were subsequently considered by an MMRB that determined the limitations imposed by his profile were so prohibitive they precluded retraining or reclassification into an MOS for which the Army had a requirement.  He was referred to a medical evaluation board.

7.  On 11 October 1988, he submitted a request for reassignment or reclassification due to the limitations imposed by his physical profile.  He further requested to remain on active duty until he was found unfit or until the expiration of his term of service.

8.  On 26 November 1989, he departed his unit in Germany on 30 days of ordinary leave (26 November through 25 December 1989).  However, it appears he did not return.

9.  On 25 December 1989, he was reported as absent without leave (AWOL) and he was dropped from the rolls as a deserter on 29 December 1989.  It is unclear what date he returned to military control.

10.  On 9 January 1990, he was convicted by a special court-martial of:

* one specification of making and using a false writing against the United States for a payment of a claim in the amount of $2,680.38
* one specification of using a false writing against the United States of a claim in the amount of $2,680.38
* one specification of obstructing justice by wrongfully endeavoring to influence the testimony of a witness

11.  The court sentenced him to a forfeiture of $482.00 pay per month for 6 months, reduction to E-1, confinement for 6 months, and a bad conduct discharge.

12.  On 28 March 1990, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed.  The record of trial was forwarded to the Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

13.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

14.  On 8 March 1991, he was apprehended by civil authorities in San Diego, CA, for desertion.  He was also held for theft of a motor boat and two counts of grand theft.  His bail was set at $60,000.00 and he was confined in the San Diego County Jail.  He was also wanted in Los Angeles County.

15.  On 28 March 1991 after failing to join the U.S. Army Processing Confinement Facility, Fort Ord, CA, he was reported as AWOL.  He was dropped from the Army rolls on the same date.

16.  On 22 May 1991, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 29 March 1991 to an undetermined date.

17.  Headquarters, VII Corps, Germany, Special Court-Martial Order Number 10, dated 25 September 1991, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.

18.  On 20 April 1994, he was apprehended by civil authorities in Burbank, CA, and transferred to military control at Fort Sill.  He was assigned to Battery B, Personnel and Support Battalion, U.S. Army Field Artillery Center and Fort Sill.

19.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Special Court-Martial Order Number 18, dated 9 May 1994, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.

20.  He was discharged from the Army on 13 June 1994.  His DD Form 214 shows he was discharged as a result of court-martial with a bad conduct discharge under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations).  This form further shows he completed a total of 2 years, 9 months, and 5 days of creditable military service.  He had lost time from 25 December 1989 to 7 March 1991, 8 March 1991 to 28 March 1991, and 29 March 1991 to 19 April 1994.

21.  Army Regulation 635-200, 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.

22.  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.  

23.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded and his felony conviction should be reduced to a misdemeanor.

2.  The evidence of record shows the applicant's trial by special court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The applicant's military service was marred by an extensive history of AWOL, apprehension, confinement, and serious charges.  His post-service professional achievements were carefully considered; however, they are not sufficiently mitigating to grant the requested relief.

4.  The ABCMR does not reexamine issues of guilt or innocence under a court-martial.  This is the convening authority's and appellate court's function and it cannot be upset by the ABCMR.  Furthermore, the applicant's case has already been adjudicated through the Army's legal system and the applicant's multiple issues were addressed or could have been addressed during the court-martial and/or appellate process.  Only after all required post-trial and appellate reviews were completed did the convening authority order the applicant's bad conduct discharge sentence executed.

5.  After a review of the applicant's entire record of service, it is clear that his service did not meet the criteria for an honorable or a general discharge.  As a result, there is insufficient basis to upgrade his discharge.

6.  With respect to the issue of reducing his felony fraud conviction to a misdemeanor, this issue is not within the purview of this Board.  

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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________________________
                 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)                                         AR20110009155



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ABCMR Record of Proceedings (cont)                                         AR20110009155



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