BOARD DATE:	  12 September 2013

		DOCKET NUMBER:  AR20130012400 


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 bad conduct discharge. 

2.  The applicant states he would like the characterization of his service upgraded so that he may be eligible to receive medical and educational benefits to support himself and his family.  He had reenlisted twice and he was proud to serve his country.  He served honorably from 24 March 1994 to 18 February 1999.  He was forced to serve from August 2001 to December 2003 at Camp Lejune, but it was later found through the U.S. Army Court of Criminal Appeals that the judge had erred. 

3.  The applicant provides:

* General Court-Martial Orders Number 12, dated 5 January 2006
* U.S. Army Court of Criminal Appeals memorandum of opinion, dated 8 December 2003

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 24 March 1994 and he held military occupational specialty 11B (Infantryman).  He reenlisted in the Regular Army on 29 August 1996 and again on 19 February 1999.  

3.  He attained the rank/grade of sergeant (SGT)/E-5 and he was awarded or authorized the Army Achievement Medal, Army Good Conduct Medal, National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, and Army Service Ribbon. 

4.  On 26 April 1999, while holding the rank/grade of SGT/E-5, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully having sexual intercourse with another sergeant, not his wife.  

5.  On 31 May 2001, the applicant was convicted by a general court-martial of:

	a.  Charge I, Specification 1, committing an assault upon staff sergeant (SSG) DMW by choking her with his hands and placing her head between the headboard of a bed until she lost consciousness and did thereby intentionally inflict grievous bodily harm upon her; 

	b.  Charge I, Specification 2, committing an assault upon SSG DMW by choking her neck with means or force likely to produce death or grievous bodily harm; 

	c.  Charge II, Specification 1, unlawfully striking SSG DMW in the ear with a closed fist; and 

	d.  Charge III, Specification 1, wrongfully having sexual intercourse with specialist ABS, not his wife, on divers occasions between on or about April 2000.

6.  The court sentenced him to a dishonorable discharge, confinement for 
7 years, a forfeiture of all pay and allowances, and a reduction to the lowest enlisted grade.

7.  On 2 March 2002, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement for 48 months, a forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Criminal Appeals.

8.  On 8 December 2003, the U.S. Army Court of Criminal Appeals:

* affirmed the findings of guilty of Specification 1 of Charge II and Charge II and the Specification of Charge III
* set aside the findings of guilty to Specifications 1 and 2 of Charge I and Charge I
* ordered a rehearing of Charge I and its specifications 

9.  On 4 February 2004, the applicant was convicted by a general court-martial of Charge 1, Specification 1, committing an assault upon SSG DMW by choking her and by placing her head between the headboard and mattress of a bed and by placing his forearm against SSG DMW's throat, and choking her with his hands until she lost consciousness, and did thereby intentionally inflict grievous bodily harm upon her.  The court noted that the U.S. Army Court of Criminal Appeals had affirmed the findings of guilty with regard to the specification of unlawfully striking SSG DMW in the ear with a closed fist and the specification of wrongfully having sexual intercourse with specialist ABS, not his wife, on divers occasions. 

10.  The court sentenced him to a bad conduct discharge, confinement for 
16 months, a forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.  On 1 April 2004, the convening authority approved the sentence.

11.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 12, dated 5 January 2006, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.  He was accredited with 876 days in confinement.  That portion of the sentence pertaining to confinement had been served.

12.  The applicant was discharged from the Army on 24 March 2006.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 9 years, 7 months, and 20 days of creditable military service with 780 days of excess leave.

13.  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.

14.  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 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 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 general 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 U.S. Army Court of Criminal Appeals. 

	b.  The U.S. Army Court of Criminal Appeals reviews the case for legal error, factual sufficiency, and sentence appropriateness.  In the applicant's case, the U.S. Army Court of Criminal Appeals affirmed the finding of guilty with regard to the specification of unlawfully striking SSG DMW in the ear with a closed fist and the specification of wrongfully having sexual intercourse with specialist ABS, not his wife, on divers occasions.  The Court also ordered retrial of two other charges/specifications.  The resulting action was a sentence to a bad conduct discharge. 

	c.  Once the appellate review was completed the convening authority ordered the bad conduct discharge executed.  The execution part is memorialized in General Court-Martial Order Number 12, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, on 5 January 2006, 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 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)                                         AR20130012400



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ABCMR Record of Proceedings (cont)                                         AR20130012400



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