IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120000738 


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, an upgrade of his bad conduct discharge.

2.  The applicant states he spent 15 months in the U.S. Disciplinary Barracks (USDB).  He states his co-defendants did not go to prison and one was allowed to reenter military service even though they were all convicted of the same charge.  He states he was given clemency after 15 months because he saved a guard's life during the 1994 riot in the USDB.  He protected the guard and kept him alive for 5 hours until the guards resumed control of the wing.  He also states he has been sober for 10 years and wants to counsel veterans about addiction at the Department of Veterans Affairs hospital in Ohio.

3.  The applicant provides no additional evidence.

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 enlisted in the Regular Army on 29 June 1994.

3.  On 12 September 1995, a general court-martial found the applicant guilty of conspiracy to commit robbery and robbery and sentenced him to reduction to the rank/pay grade of private/E-1, forfeiture of all pay and allowances, confinement for 7 years, and a dishonorable discharge.

4.  Headquarters, 25 Infantry Division, Orders A269-03, dated 26 September 1995, show the applicant was ordered to report to the USDB on 6 October 1995.

5.  On 9 January 1996, the convening authority approved the findings and sentence only so much as it provided for reduction to the rank/pay grade of private/E-1, forfeiture of all pay and allowances, confinement for 2 years, and a bad conduct discharge and, except for that part of the sentence extending to a bad conduct discharge, ordered it executed.

6.  On 31 July 1996, the U.S. Army Court of Criminal Appeals affirmed the findings and the approved sentence.

7.  USDB General Court-Martial Order Number 14, dated 29 January 1997, announced the sentence to a bad conduct discharge, forfeiture of all pay and allowances, confinement for 2 years, and reduction to the rank/pay grade of private/E-1 adjudged on 12 September 1995 as promulgated in General Court-Martial Order Number 3, Headquarters, 25 Infantry Division (Light), as corrected by the U.S. Army Court of Criminal Appeals had been finally affirmed.  Article 71(c) having been complied with, the bad conduct discharge was ordered to be executed.

8.  U.S. Army Combined Arms Center and Fort Leavenworth General Court-Martial Order Number 4, dated 30 January 1997, set aside the unexecuted portion of the sentence to confinement in excess of 16 months as promulgated in General Court-Martial Order Number 3, Headquarters, 25 Infantry Division (Light), and restored all rights, privileges, and property of which the applicant had been deprived by virtue of that portion of the sentence pending appellate review.

9.  USDB Order 021-06, dated 5 March 1997, discharged the applicant from the Regular Army for bad conduct effective 14 March 1997.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 14 March 1997 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-11, as a result of court-martial.  He completed 1 year, 6 months, and 29 days of net active service during this period with 1 year, 2 months, and 15 days of lost time from 12 September 1995 through 26 November 1996 and 108 days of excess leave from 27 November 1996 through 13 March 1997.  His service was characterized as bad conduct.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.

	c.  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.

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 trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and his bad conduct discharge appropriately characterizes the misconduct for which he was convicted.

2.  His contention that his co-defendants did not go to prison and one was allowed to reenter military service even though they were all convicted of the same charge is noted.  In the absence of evidence to the contrary, it must be presumed that the court exercised sound judgment in its sentencing.  The records show he was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed modified sentence was ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  He was charged with committing serious crimes after only 10 months and 23 days of military service.  Clearly, the quality of his service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  As a result, clemency in the form of an honorable or a general discharge is not warranted in this case.  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 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)                                         AR20120000738



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ABCMR Record of Proceedings (cont)                                         AR20120000738



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