IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120016637 


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 to an honorable discharge and retirement with full benefits.

2.  The applicant states:

	a.  He believes his discharge is inequitable because it was based on a single isolated incident that occurred after 17 years of honorable service.

	b.  The incident occurred while conducting an official military operation while he was deployed in support of Operation Iraqi Freedom 2004-2005.

	c.  While conducting the tactical questioning of one of the Iraqis he was distracted by one of his Soldiers.  He remembers raising his weapon reflexively and shooting the Iraqi in his left jaw.  When he regained his senses, he reported the incident to his higher headquarters.

	d.  One of the detainees, the father of the man he shot, told interrogators that he stood his son up against a wall with his back turned and shot him in the back of the head.

	e.  A commander's inquiry was initiated and he cooperated with everyone, even agreeing to take a polygraph which never happened.

	f.  He was charged with premeditated murder, assault, cruelty and maltreatment, obstruction of justice, and falsifying official documents.

	g.  He was convicted of murder, cruelty and maltreatment, and obstruction of justice.

	h.  He was sentenced to reduction to pay grade E-1, confinement for 8 years, forfeiture of all pay and allowances, and a dishonorable discharge.

	i.  He did not receive a fair trial and he was convicted without any evidence to prove the charges he faced.

	j.  He cannot seek assistance from the Department of Veterans Affairs with a dishonorable discharge.

	k.  He wakes up every morning with excruciating pain in his knees, he has constant ringing in his ears, and he has been diagnosed with post-traumatic stress disorder (PTSD), which are injuries (conditions) he sustained while serving his country.

	l.  He is now a civilian and he finds himself with these injuries and no support from our government.

	m.  He was released on parole on 8 October 2008 with a termination date of 17 February 2012.

	n.  He had one condition while he was on parole and that was to visit with a mental health provider every week to help him with his PTSD.

	o.  He never denied shooting the Iraqi man; however, he shot him with no malicious intent.  It was not murder.  It was an accident that occurred while he was performing his duties in a declared theater of combat.

	p.  This accident has ruined his career, brought dishonor to his name, caused him and his family financial hardship, and resulted in the termination of his 
15-year marriage.

3.  The applicant provides the documents as stated in his application.

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 of Trial and the facts and circumstances surrounding the applicant's discharge are not available.  Information contained in this Record of Proceedings was obtained from the evidence submitted by the applicant and documents contained in his Army Military Human Resource Record (AMHRR).

3.  The applicant enlisted in the Regular Army on 26 July 1988.  He remained on active duty through continuous reenlistments and extensions.

4.  On 24 November 2004, a U.S. Army Criminal Investigation Command (CID) Report of Investigation was completed on the applicant due to charges of murder, making a false official statement, and cruelty and maltreatment.  

5.  The available evidence shows the applicant pled guilty and was found guilty of maltreating a local national male, a person subject to his orders, during an interrogation by forcing him to hold a smoke grenade while blindfolded with the pin pulled.  He also pled guilty and was found guilty of murdering a local national with premeditation by shooting him with a rifle.

6.  A Medication Follow-Up List, dated 31 May 2005, describes the applicant's status as:

Post-Trial.  Male.  35 y/o Hispanic, married AD/USA/E-7>E1 previously stationed in Schweinfurt, Germany.  Confined for murder, obstruction of justice and cruelty of subordinates.  Arrived 18 May 2005.  Sentence:  7 years.  Reported that he is very distraught about recent court-martial.  Voiced he feels betrayed by the military after 17 years of faithful service.  Voiced concern about the welfare of his family (wife and 3 children).  Displays some significant PTSD type symptoms of disturbed sleep, anxiety, jumpiness and nightmares.

7.  On 6 September 2007, the U.S. Army Clemency and Parole Board approved the applicant's request for parole.  However, the board denied his request for clemency and restoration to duty.  His parole was approved effective 8 October 2008 based upon his continued good behavior.  As a condition of his parole, he was required to enroll in and successfully complete a mental health aftercare program.
8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was dishonorably discharged on 27 March 2009 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial conviction.  He completed 17 years, 3 months, and 11 days of net active service.

9.  On 4 October 2011, the U.S. Army Clemency and Parole Board denied the applicant's request for reenlistment and clemency.  The board felt that continued supervision was required due to his conviction for multiple serious violent offenses, including murder, and his relatively short time (3 years) on supervised release.

10.  The applicant provides what he contends are 5 of 16 legal issues that he and his attorney raised which have to be proven in order to proceed with a court-martial that he believes were not.  Those issues are:

* whether court-martial jurisdiction exists without proof of cause of death
* whether the applicant has been wrongfully convicted for the alleged death of a different victim
* whether the applicant is innocent of maltreatment under Article 93, Uniform Code of Military Justice (UCMJ) – the civilian Iraqi victim had no relationship to the military – such relationship is a required predicate for maltreatment
* whether the military judge erred when she found the applicant guilty of "unpremeditated murder" beyond a reasonable doubt
* whether the military judge erred when she did not explain all of the defenses of self-defense

11.  The applicant references unequal sentences in what he believes are similar cases and a newspaper article which states that 22 families were threatened with decapitation if they did not leave Baghdad.  He provides a U.S. Army Court of Criminal Appeals decision, dated 30 May 2008, holding that the findings of guilty and the sentence as approved by the convening authority in his case is correct in law and fact, and affirming the findings and sentence.  The applicant provides Rule 405 of the UCMJ, Article 118 of the UCMJ, excerpts from the Manual for Courts-Martial, Sanity Board referral information, and excerpts from Department of the Army Pamphlet 27-9 (Military Judges' Benchbook).

12.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed.

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

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.

	c.  Paragraph 3-11 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

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.

3.  As previously stated, the applicant's Record of Trial and the facts and circumstances surrounding his discharge are not available.  The available evidence suggests he was convicted pursuant to his pleas by a general court-martial of murder, cruelty and maltreatment, and obstruction of justice.  There is no evidence in the available record, nor has the applicant submitted sufficient evidence showing the type of discharge he received was inequitable, unjust, or too harsh.  The applicant’s contentions concerning 5 of 16 legal issues are matters that should have been considered and conclusively adjudicated during the appellate process.  In the absence of sufficient evidence to the contrary, this Board must presume regularity.

4.  The dishonorable discharge he received appropriately characterizes his service and is not overly severe considering the nature of his offenses.

5.  In view of the foregoing, the applicant's requests should be denied.

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)                                         AR20120016637



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ABCMR Record of Proceedings (cont)                                         AR20120016637



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