IN THE CASE OF:
BOARD DATE: 31 July 2014
DOCKET NUMBER: AR20130021792
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 reconsideration of his previous request to upgrade his bad conduct discharge based on newly-discovered evidence.
2. The applicant states, in effect, the Board did not consider that he has been fighting his civil conviction for 20 years in an attempt to prove his innocence and that he was diagnosed as suffering from alcohol dependency, post-traumatic stress disorder (PTSD), and anti-social (behavior), which he contends contributed to his misconduct.
3. The applicant provides a three-page letter explaining his application, copies of his Forensic Psychological Evaluation, and two articles that he contends accurately defines his condition.
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 AR20130002063, on 8 October 2013.
2. The applicant enlisted in the Regular Army on 15 March 1989 for a period of
4 years and training as a cavalry scout. He completed one-station unit training at Fort Knox, Kentucky and was transferred to Fort Polk, Louisiana for his first and only duty assignment.
3. On 7 December 1992, he was convicted by a general court-martial of two specifications of wrongfully appropriating government property and one specification of making a false official statement. He was sentenced to a forfeiture of pay, a BCD, confinement for 57 days (suspended for 1 year) and reduction to pay grade E-1. He was placed on involuntary excess leave pending the appellate review
4. The findings and sentence approved by the convening authority were affirmed and on 2 May 1994 he was discharged due to a duly-affirmed court-martial conviction. He had served 4 years, 11 months, and 24 days of active service and he had 57 days of lost time due to imprisonment.
5. The applicant is currently incarcerated in the custody of the Virginia Department of Corrections where he is serving a life sentence.
6. The Forensic Psychological Evaluation provided by the applicant is dated
25 March 1994 and was court-ordered in conjunction with his pre-sentence hearing. The evaluation diagnosed the applicant as having alcohol dependence, PTSD, and a personality disorder not otherwise specified, with anti-social features.
7. 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 applicantÂ’s contentions and supporting documents have been carefully considered and appear to lack merit.
2. The supporting documents submitted by the applicant appear to address the circumstances related to his civilian conviction and do not relate to his court-martial conviction for stealing government property.
3. While it is conceivable that the applicant's subsequently diagnosed conditions may have had an effect on him while he was in the military, he has failed to show through the evidence submitted with his application and the evidence of record that such was the case.
4. There is no evidence in the available records to show that he was unable to distinguish right from wrong and that he could not adhere to the right.
5. 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.
6. 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 to amend the decision of the ABCMR set forth in Docket Number AR20130002063, dated 8 October 2013.
_______ _ _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) AR20130021792
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