IN THE CASE OF:	   

		BOARD DATE:	  27 March 2014

		DOCKET NUMBER:  AR20130008454 


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 that his bad conduct discharge (BCD) be upgraded to an under other than honorable conditions discharge.

2.  The applicant states he suffered double jeopardy because he was punished under Article 15 and by a court-martial for the same offenses.  He states his company commander backdated his Article 15 and then had him court-martialed. 

3.  The applicant provides a two-page undated self-authored letter.

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 25 July 1978.  He successfully completed basic and advanced individual training and he was awarded military occupational specialty 68F (Aircraft Electrician).

3.  On 23 July 1982, he was honorably discharged for the purpose of immediate reenlistment on 24 July 1982.  On 1 August 1981, he was promoted to the rank/grade of specialist (SPC)/E-4.  He had been awarded the Army Good Conduct Medal, Army Service Ribbon, and Expert Marksmanship Qualification Badge Rifle (M-16).

4.  A DA Form 2627, (Record of Proceedings Under Article 15, UCMJ), dated 
6 August 1985, shows nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order and using disrespectful language towards a noncommissioned officer (NCO).  His punishment consisted of a reduction to grade private (PVT)/E-1 and forfeiture of $300.00 per month for two months (both were suspended to be automatically remitted if not vacated before 4 October 1985).  

5.  On 10 September 1985, the suspension of forfeiture of $300.00 per month for two months was vacated based on his violation of a lawful general regulation.

6.  On 4 October 1985, the suspension of reduction to PVT/E-1 was vacated based on his wrongful use of marijuana in the hashish form on two occasions and theft of $339.00 from a civilian female.

7.  While stationed at Erlensee, Germany, he was tried by a special court-martial (SPCM) on 18 November 1985.  Pursuant to his pleas of guilty, he was convicted of:

* wrongfully having in his possessing a device designed for use in 	introducing a controlled substance into the human body
* wrongful using marijuana
* wrongful possession of marijuana
* larceny 

8.  The military judge sentenced him to 100 days confinement and a BCD.

9.  On 20 March 1986, the U.S. Army Court of Military Review (USACMR) considered the applicant's appeal, found that the findings and sentence were correct in law and fact, and affirmed the findings and sentence.


10.  On 29 August 1986, the USACMR considered the applicant's convictions for wrongful use and wrongful possession of marijuana.  The applicant contended that the two specifications were multiplicitous for findings and sentence.  The USACMR found no multiplicity under the facts.  The findings of guilty and the sentence were affirmed.

11.  SPCM Order Number 164, dated 6 October 1987, issued by Headquarters, U.S. Army Armor Center and Fort Knox, KY, shows that the sentence to the BCD and confinement for 100 days having been affirmed, the convening authority ordered the applicant’s BCD executed.

12.  On 10 November 1986, he was discharged from the Army with a BCD under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial.  He completed a combined total of 6 years, 10 months, and 20 days of creditable active service with 80 days of time lost due to confinement.

13.  In a two-page statement, he states that he received a SPCM and Article 15.  He claims double jeopardy because he was punished twice for the same offenses.  After arriving in Germany with his family, he received an Article 15 and did his punishment.  Later steps were taken for him to be administratively separated from the military.  The night before he was to leave Germany, he committed a crime.  

14.  He also states that his company commander backdated the incident and applied the full punishment of the Article 15, then proceeded to court-martial him.  He was found guilty of his crime and 20 years' incarceration was recommended.  The court-martial judge did not agree and sentenced him to 1-year of confinement.  His attorney appealed his sentence, because he suffered double jeopardy and the Appeals Court denied the request.  He served his country and he still loves and respects her.  He let down and embarrassed his family from his mistakes, he request the opportunity to correct his legacy and restore his family name.

15.  Army Regulation 27-10 (Military Justice), paragraph 3-10, states that when NJP has been imposed for an offense, punishment may not again be imposed for the same offense under Article 15.  Once NJP has been imposed, it may not be increased, upon appeal or otherwise. When a commander determines that NJP is appropriate for a particular service member, all known offenses determined to be appropriate for disposition by NJP and ready to be considered at that time, including all offenses arising from a single incident or course of conduct, will ordinarily be considered together and not made the basis for multiple punishments.  This provision does not restrict the commander's right to prefer court-martial charges for a non-minor offense previously punished under the provisions of Article 15.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable discharge or BCD) 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.

17.  Army Regulation 635-200, paragraph 3-7c, states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be used for misconduct, fraudulent entry, homosexual conduct, security reasons, or discharge in lieu of trial by court martial.

18.  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 Army Board for Correction of Military Records 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 he suffered from double jeopardy because he received punishment by an Article 15 and a court-martial for the same offenses.  The record does not show that this happened.  The record only shows that some of the offenses for which he was tried by court-martial had earlier served as the basis for vacation of the suspension of previously imposed NJP.  He should also note that receiving NJP would not have prevented his commander from preferring court-martial charges.  While he may believe that he suffered from double jeopardy, he had the opportunity to make that argument during his court-martial and the appellate process.  

2.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.
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)                                         AR20130008454





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ABCMR Record of Proceedings (cont)                                         AR20130008454



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