IN THE CASE OF:
BOARD DATE: 1 July 2014
DOCKET NUMBER: AR20130019253
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 a fully honorable discharge.
2. The applicant states that his court-martial order directed that all rights, privileges and property be restored to him after his confinement and he now desires an honorable discharge. He also states that he was found guilty of a crime he did not commit but he plea bargained in order to avoid severe imprisonment.
3. The applicant provides copies of his court-martial order and DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 23 November 1982. He completed his one-station unit training as an infantryman at Fort Benning, Georgia and remained on active duty through continuous reenlistments. He served overseas tours in Germany and Korea and deployed to Panama during Operation Just Cause. He was promoted to the rank of sergeant on 6 February 1987.
2. On 3 April 1992, he was convicted by a general court-martial of the following charges:
* Charge I Wrongful possession of cocaine on 18 December 1991
* Charge II Specification I failure to go to his place of duty Physical Training Formation
* Charge II Specification II Absent from his unit from 20 November to
26 November 1991
* Charge III Three specifications of larceny of personal property
* Charge IV Two specifications of burglary in the nighttime with intent to commit larceny
* Charge V Housebreaking with intent to commit larceny
* Charge VI willful destruction of personal property
* Charge VII wrongful possession and use of cocaine
* Charge VIII Dishonorably failed to pay just debts
3. The applicant was sentenced to confinement at hard labor for 3 years, forfeiture of all pay and allowances, reduction to the pay grade of E-1, and a BCD. However, the convening authority approved only so much of the sentence as provided for confinement for 32 months, forfeiture of all pay and allowances, reduction to the pay grade of E-1, and a BCD.
4. On 22 December 1993, General Court-Martial Order Number 451 issued by the United States Disciplinary Barracks at Fort Leavenworth, Kansas set aside the finding of guilty of specification I of Charge II (failure to go to place of duty) and directed that all rights, privileges and property of which the applicant had been deprived as a result of the findings of guilty of specification I of Charge II be restored to the applicant. The remainder of the guilty findings and BCD were affirmed.
5. On 21 January 1994, he was discharged due to a duly affirmed court-martial conviction. He had served 8 years, 11 months, and 29 days of active service and had 2 years, 1 month and 29 days of lost time due to being absent without leave and confinement.
6. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his discharge should be upgraded because his conviction was set aside has been noted and found to lack merit. Only one specification, the most minor of all, was set aside and there is no evidence of any rights, privileges or property that needed to be restored when considering the serious nature of all of the guilty findings that were affirmed.
2. The applicant's trial by court-martial was warranted by the gravity of the offense charged. His conviction and discharge were effected in accordance with applicable law and regulations and the BCD appropriately characterizes the misconduct for which he was convicted. As such, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case and there is an insufficient evidentiary basis for granting the applicant an upgrade of his BCD to any other characterization of service.
3. Additionally, 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. Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. As a result, clemency is also 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) AR20130019253
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ABCMR Record of Proceedings (cont) AR20130019253
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