BOARD DATE:	  20 August 2013

		DOCKET NUMBER:  AR20130000346 


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, through his Member of Congress, reconsideration of his previous request for correction of the characterization of service shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from "bad conduct discharge" to "honorable discharge."

2.  The applicant states Special Court-Martial Order Number 12, issued by Headquarters, 24th Infantry Division, Fort Stewart, GA, on 8 June 1989, clearly states the sentence is approved and "except for that part of the sentence extending to a bad conduct discharge will be executed" (emphasis added).   

3.  The applicant provides his DD Form 214 and Congressional correspondence. 

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 AR20040011516, on 1 September 2005. 

2.  The applicant's request does not meet the two-tiered criteria for reconsideration in that it was neither submitted within 1 year of the original decision nor does it contain new evidence.  However, the Board did not fully explain the appellate process during court-martial proceedings.  As a result, the applicant's request will be considered as an exception to policy. 

3.  Having had prior service, the applicant reenlisted in the Regular Army on 17 October 1978.  He held military occupational specialties 91B (Medical Specialist) and 95B (Military Police). 

4.  He served through multiple reenlistments or extensions in a variety of stateside or overseas assignments and he attained the rank/grade of staff sergeant (SSG)/E-6. 

5.  On 13 May 1988, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued indebtedness and dishonored checks notifications.  The applicant was furnished with a copy of this bar but he elected not to submit a statement in his own behalf.  The bar was ultimately approved by the approving authority. 

6.  On 12 September 1988, while holding the rank/grade of SSG/E-6, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine.  

7.  On 19 April 1989, he was convicted by a special court-martial of one specification of unauthorized absence from his unit on 20 January 1989 and one specification of wrongfully disobeying a lawful order of a superior commissioned officer on or about 23 January 1989.  The court sentenced him to a bad conduct discharge, reduction to the lowest enlisted grade, and confinement for 90 days.

8.  On 8 June 1989, the convening authority approved the sentence and, except for the part of the sentence extending to a 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.

9.  The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, 24th Infantry Division, Fort Stewart, GA, Special Court-Martial Order Number 11, dated 3 April 1990, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.

11.  He was discharged from the Army on 3 April 1990.  His DD Form 214 shows he was discharged as a result of court-martial with a bad conduct character of service.  This form further shows he completed a total of 11 years, 5 months, and 17 days of creditable military service with 2 years, 9 months, and 17 days of prior active service. 

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.

13.  Army Regulation 635-200 provides for the separation of enlisted personnel.  

	a.  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.

	b.  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.  

	c. Paragraph 3-11 (Bad Conduct Discharge) states 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.  

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed 

sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  Courts-martial are conducted under the UCMJ and the Manual of Courts-Martial (in addition to Title 10, U.S. Code, sections 801-946).  

	a.  If the trial results in a conviction, the case is reviewed by the convening authority -- the person who referred the case for trial by court-martial.  The convening authority has discretion to amend or set aside any or all of the findings and amend or reduce the sentence.  If the sentence, as approved by the convening authority, includes a bad-conduct discharge, a dishonorable discharge, dismissal of an officer, or confinement for one year or more, the case is reviewed by the Army Court of Criminal Appeals. 

	b.  The Army Court of Criminal Appeals reviews the case for legal error, factual sufficiency, and sentence appropriateness.  

	c.  In the applicant’s case, once the appellate review was completed the convening authority ordered the bad conduct discharge executed.  The execution part is memorialized in Special Court-Martial Order Number 11, issued by Headquarters, 24th Infantry Division, Fort Stewart, GA, on 3 April 1990, and shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.

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 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.  A bad conduct discharge was an appropriate sentence for the applicant’s offenses.  He has provided insufficient evidence to mitigate that punishment to an administrative characterization.  Therefore, clemency in the form of an honorable discharge 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20040011516, dated 1 September 2005.



      _______ _ 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)                                         AR20130000346





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ABCMR Record of Proceedings (cont)                                         AR20130000346



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