IN THE CASE OF:	   

		BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130018850 


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 be upgraded to honorable.

2.  The applicant states he was unjustly court-martialed and was targeted in his unit.  He contends that if he had not been assigned to that unit, he would have been able to continue the honorable service as shown by his first two enlistments. 

3.  The applicant provides copies of:

* Certificate, Department of the Navy, Granby High School NJROTC Unit, dated 15 June 1985
* A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 4 June 1986
* Certificate for completion of Basic Training, dated 28 October 1986
* Certificate for completion of the Food Service Specialist course, dated     16 December 1986
* Diploma, Airborne course, dated 30 January 1987
* Certificate, Fayetteville Technical Institute, Business Occupational English, dated 2 July 1987
* A Certificate for award of the Army Achievement Medal, dated                 15 December 1987
* An Honorable Discharge Certificate from the U.S. Army, dated                 29 December 1988
* Oath of Reenlistment, dated 30 December 1988
* A DD Form 4 dated 30 December 1988
* A Certificate of Appreciation for outstanding support during its Team Validation Exercise 13-17 February 1989
* A Certificate of Appreciation as a cook during Exercise Jaguar Bite 89, dated 16 May 1989
* A DA Form 1059 (Service School Academic Evaluation Report) Primary Leadership Development Course (PLDC), dated 15 September 1989
* A Certificate of Completion of PLDC during 8 September to 5 October 1989
* A Certificate of Achievement for completing the Airborne Leader's Replacement Course, dated 8 December 1989
* A Certification for participation in Operation Just Cause during                 20 December 1989 to 20 January 1990
* Permanent Orders 19-32, 82nd Airborne Division, dated 30 January 1990 for award of the Combat Infantryman Badge
* Permanent Orders 16-44, Joint Task Force South, dated 15 February 1990 for award of the Bronze Star Medal
* A DA Form 2166-7 (NCO Evaluation Report) for period August 1989 to May 1990
* A DD Form 4 dated 22 May 1990
* A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) dated    10 January 1991
* A Memorandum, General Officer Memorandum of Reprimand (GOMOR), dated 10 May 1991
* A Memorandum for Record, Service of GOMOR, dated 8 October 1991
* Orders 103-948, Fort Lewis, WA, dated 8 June 1992
* A DA Form 31 (Request and Authority for Leave), dated 15 June 1992
* A Memorandum for Excess Leave Without Pay and Allowances, dated   15 June 1992
* A Memorandum, Involuntary Excess Leave, dated 15 June 1992
* A Memorandum, Staff Action - Decision Paper on Involuntary Excess Leave, dated 14 September 1992
* A Decision, U.S. Army Court of Military Review, dated 14 December 1992
* A letter from the applicant's defense counsel, dated 15 December 1992
* General Court-Martial Order Number 62, Fort Knox, KY, dated 12 April 1993
* Orders 112-00207, Fort Knox, KY, dated 22 April 1993
* A DD Form 214 (Certificate of Release or Discharge from Active Duty) for period of service from 1986 to 1993
* DA Form 2-1 (Personnel Qualification Record - Part II) 
* Certificate, Basic Correctional Officers Phase I Institutional Training, Department of Corrections, Sussex II State Prison, dated 2 October 1998
* Certificate of Completing  a basic factory approved course in the application and maintenance of the Stun Tech ULTRON II, dated            28 October 1998
* Certificate, Basic Correctional Officers Phase II, dated 30 October 1998
* Certificate of Membership, Correctional Peace Officers Foundation, Inc, undated
* Certificate of Recognition for completion of Basic Strike Force Training, dated 15 January 1999
* Certificate for completing Field Training Officer Program, dated                 10 September 1999
* Certificate of Appreciation, Sussex II State Prison, dated 6 October 1999
* Certificate, Lawfit Fitness Leadership Workshop, dated 22-24 May 2001
* Letter of congratulations, Portsmouth Sheriff's Office, dated 4 June 2001
* Certificate of Participation, TOP COP Fitness Challenge, dated November 2001
* A letter, Commonwealth of Virginia, Department of Criminal Justice Services, dated 30 November 2001
* Certificate of Completion, Oleoresin Capsicum Punch II, dated 16 April 2002
* Certificate of Attendance, The Special Operations Team Special Weapons and Tactical School, dated 22 April to 3 May 2002
* A letter of support, dated 26 June 2012

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.  On 21 August 1986, the applicant enlisted in the Regular Army.  He completed his initial training as a food service specialist.

3.  In January 1987, the applicant was assigned to Fort Benning, GA, where he completed the Basic Airborne course and was subsequently reclassified as an infantryman.  He then was assigned to the 82nd Airborne Division at Fort Bragg, NC.

4.  On 1 June 1989, the applicant was promoted to sergeant, pay grade E-5.

5.  On 26 June 1990, the applicant departed Fort Bragg for duty in Alaska with the 501st Infantry Regiment.

6.  General Court-Martial Order Number 14, 6th Infantry Division, Fort Wainwright, AK, dated 31 March 1992, shows the applicant was convicted of violating:

	a.  Article 128, under the Uniform Code of Military Justice (UCMJ), for aggravated assault; and

	b.  Article 134, UCMJ, for wrongfully soliciting another to commit a crime.

7.  The applicant pled not guilty to both charges and specifications but was found guilty of the same.  His adjudged sentence was forfeiture of all pay and allowances, confinement for 1 year, and a bad conduct discharge.

8.  On 31 March 1992, the convening authority approved the sentence, except for the part extending to a bad conduct discharge, and ordered the sentence to be executed.  The applicant was credited with 89 days of pretrial confinement against the sentence to confinement.

9.  On 14 December 1992, the U.S. Army Court of Military Review (USACMR), considered the applicant's entire record, including consideration of the issues personally specified by the applicant.  The USACMR held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings and the sentence were affirmed.

10.  General Court-Martial Order Number 62, U.S. Army Armor Center and Fort Knox, KY, dated 12 April 1993, announced the sentence had been affirmed.  Article 71(c) having been complied with, and the sentence to confinement having been completed, that portion of the sentence pertaining to a bad conduct discharge was to be executed.

11.  The applicant's DD Form 214 shows he was discharged from the Regular Army on 3 May 1993 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial.  He received a bad conduct characterization of service.

10.  On 26 June 2012, a former Soldier who had served with the applicant in the same Airborne Infantry Rifle Company wrote a letter of support.  He states that he arrived in the unit a few days after the applicant had arrived and they immediately became friends.  He knew that the applicant had previously served with the prestigious 82nd Airborne Division and had received the Combat Infantryman Badge and the Combat Parachutist Badge with Gold Star.  The applicant's professionalism and complete attention to the detail of his military appearance was obviously notable every day he was present for duty.  He noticed that the applicant had been assigned duties that were normally given to more junior enlisted Soldiers.  He found this action to be strange.  He also states that the applicant had been notified that his wife and child would not be joining him in Alaska because the Army had refused to reassign his wife.  The applicant had already shipped his entire household to Alaska based on being told he was to be on an accompanied tour.  Things were made worse for him after he had made a complaint to his command.  The author states that the level and intensity increased, making it obvious that the applicant was the target of a concerted effort to force him out of the military.  The applicant became overwhelmed and began to drink heavily.  His ability to function was diminishing.  He was charged with driving while intoxicated.  His career went downhill from there.  He was demoted one rank allowing for the chain of command to further demean him as a Soldier by assigning him to serve under other Soldiers he had formerly led instead of moving him to another unit as is customary when a former leader is demoted.  The author believes that a great deal of what the applicant experienced in Alaska was the result of his having earned awards while with the 82nd Airborne Division.

11.  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.

12.  Army Regulation 635-200, paragraph 3-7a states 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.


13.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to honorable because he was unjustly court-martialed and was targeted in his unit.

2.  Trial by court-martial was warranted due to the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulation, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  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 sentence imposed.  Given the seriousness of the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  Furthermore, there is no available documentary evidence that sufficiently substantiates the applicant's contention that he was wrongly targeted by his command because he had earned certain awards and badges while assigned with the 82nd Airborne Division.

5.  The extensive documents provided by the applicant clearly show that he knew how to Soldier and did it well.  However, the misconduct resulting in his court-martial and bad conduct discharge greatly diminishes his earlier good service.

6.  The applicant's subsequent good civilian job performance is noted.  However, those good works are not sufficient to overcome the applicant's misconduct and conviction while in the service.

7.  In view of the above, the applicant’s request 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 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)                                         AR20130018850





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