IN THE CASE OF:
BOARD DATE: 8 January 2015
DOCKET NUMBER: AR20140007619
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 dishonorable discharge (DD) be upgraded.
2. The applicant states he believes in his heart that he should have received an upgrade of his discharge because he has been on great behavior and has been doing excellent with his life. From the time of his release to the present, he has been working and taking care of his responsibilities such as his children, attending church service Sunday after Sunday, and mainly staying out of trouble.
3. The applicant provides no supporting documents with his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the regular Army on 26 March 1996 for a period of 3 years, training as an Avenger Crewman, and assignment to Europe. He completed his basic training at Fort Sill, Oklahoma and his advanced individual training at Fort Bliss, Texas and was transferred to Germany on 19 August 1996.
2. On 14 July and 12 September 1997, the applicant was tried by a military judge sitting on a general court-martial at Wuerzburg and Bamberg, Germany. Pursuant to his pleas, the applicant was found guilty of conspiracy to obstruct justice and maiming and assault consummated by battery upon a child under 16 years of age. He was sentenced to a DD, confinement for 11 years, total forfeiture of pay and allowances (deferred from 20 October 1997 to 9 February 1998), and reduction to the pay grade of E-1.
3. On 27 May 1998, the U.S. Army Court of Criminal Appeals affirmed the findings and sentence as approved by the convening authority.
4. On 26 May 2000, the applicant was discharged pursuant to a duly-affirmed court-martial conviction. He had served 1 year, 5 months, and 16 days of active service and he had 984 days of lost time due to confinement.
5. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy 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. 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. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with the applicable law and regulation and the discharge appropriately characterizes the misconduct for which the applicant was convicted. Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.
2. The applicants contentions have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offenses.
3. Accordingly, his sentence was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.
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) AR20140007619
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ABCMR Record of Proceedings (cont) AR20140007619
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