IN THE CASE OF:	  

		BOARD DATE:	    19 April 2012

		DOCKET NUMBER:  AR20110021104 


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 dishonorable discharge (DD).  

2.  The applicant states the general court-martial (GCM) convening authority in his case approved his sentence except for the part extending to a DD.  He claims in 2006 he found out his victim and her brother worked for the Central Intelligence Agency (CIA) and had that been known at the time of his court-martial the outcome would have been different.  He states he likely would have been acquitted or convicted of manslaughter.  

3.  The applicant provides the following documents in support of his application:

* Self-Authored Statement
* U.S. Court of Military Review Memorandum Opinion
* Freedom of Information Request, dated 24 August 2006
* Headquarters, 8th Infantry Division GCM Order 50, dated 24 August 1989

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 record shows the applicant enlisted in the Regular Army on 3 March 1987, and he was trained in and awarded military occupational specialty 16S (Man Portable Air Defense System Crewmember).  His record shows he was advanced to specialist four (SP4) on 3 March 1988 and that this is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.  

3.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 20 May 1988 for assaulting his spouse by striking her numerous times in the face.  The resulting punishment included a suspended reduction to private/E-2 which was vacated on 7 October 1988 as a result of the applicant unlawfully carrying a concealed weapon.  

4.  On 17 April 1989, a GCM found the applicant guilty, contrary to his pleas, of two charges of violating Article 118 of the UCMJ.  The first charge was for committing premeditated murder on or about 30 September 1988; and the additional charge was for committing murder while attempting to perpetuate rape.  The resulting sentence was a forfeiture of all pay and allowances, reduction to private/E-1, confinement for life, and a DD.  

5.  GCM Order Number 50, Headquarters, 8th Infantry Division, dated 24 August 1989, shows the sentence adjudged on 17 April 1989 was approved by the GCM convening authority.  The sentence, with the exception of the DD, was ordered to be duly executed.  

6.  On 15 August 1991, the U.S. Army Court of Military Review affirmed the additional charge with modification to the language that removed the murder language from the additional charge, leaving a conviction of only attempting to commit rape.  The court affirmed the remaining guilty findings and the sentence as approved by the GCM convening authority. 

7.  On 4 June 1992, the U.S. Court of Military Appeals affirmed the decision of the U.S. Army Court of Military Review.  



8.  On 21 January 1993, Headquarters, U.S. Disciplinary Barracks, U.S. Combined Arms Command, Fort Leavenworth, Kansas, GCM Order Number 53 directed that Article 71c having been complied with, the DD portion of the applicant's sentence be duly executed.

9.  On 12 March 1993, the applicant was discharged by reason of court-martial, other with a DD under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations).  The DD Form 214 he was issued shows he completed a total of 1 year, 6 months, 26 days of creditable active military service and accrued lost time from 1 October through 2 March 1990 and 3 March 1990 through 12 March 1993 (after normal expiration term of service) due to imprisonment.  

10.  The applicant provides a letter from the CIA denying his request for additional information under the Freedom of Information Act.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 prescribed the policies and procedures for separating members with a DD or Bad Conduct Discharge BCD).  It stipulates that a Soldier would be given a DD or BCD pursuant only to an approved sentence of a GCM or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

12.  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's contention that the GCM convening authority did not approve the DD portion of his sentence has been carefully considered.  However, by law and regulation, a DD cannot be executed until the appellate process is complete.  In this case, it is clear the GCM convening authority approved the entire sentence imposed; however, he could not order the execution of the DD because the appellate process had to be completed.  

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.  The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.

3.  Based on the gravity of the offenses resulting in his court-martial conviction and DD his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his discharge.

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 for correction of the records of the individual concerned.



      _______ _  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)                                         AR20110021104



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ABCMR Record of Proceedings (cont)                                         AR20110021104



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