IN THE CASE OF:	  

		BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140008037 


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, in effect, that his dismissal from the Army be overturned.  

2.  The applicant stated he would provide a brief, but he did not do so. 

3.  The applicant does not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service (15 January 1993 to 29 November 1995), the applicant was appointed as a Reserve warrant officer of the Army and executed an oath of office on 30 November 1995. 

2.  He entered active duty on 30 November 1995 and served in a variety of stateside and overseas assignments, including Germany.  He was promoted to chief warrant officer four (CW4) in December 2006. 

3.  30 June 2008, he was convicted by a general court-martial of one specification of larceny of military property between on or about 1 February 2006 and 30 August 2007.  The Court sentenced him to dismissal from the service.  

4.  On 21 October 2008, the convening authority approved the sentence but ordered the sentence not executed pending completion of the appellate review. 

5.  On 17 December 2010, the U.S. Army Court of Criminal Appeals affirmed the findings and the sentence.  The Court stated the conviction became final on 15 March 2011 when the U.S. Court of Military Appeals denied the applicant's petition for a grant of review.

6.  On 2 May 2011, the Assistant Secretary of the Army for Manpower and Reserve Affairs approved and ordered executed the sentence of dismissal.

7.  Headquarters, Department of the Army, Washington, DC, General Court-Martial Order Number 7, dated 13 May 2011, shows that after completion of all required post-trial and appellate reviews, the Chief of Staff of the Army directed that the applicant cease to be a member of the U.S. Army at midnight on 27 May 2011 by order of the Secretary of the Army.

8.  The applicant was dismissed from the Army on 27 May 2011.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was dismissed from the service as a result of a court-martial with an under other than honorable conditions characterization of service.  He completed 15 years, 5 months, and 28 days of active service. 

9.  Article 74 of the UCMJ allows the Secretary and, when designated by him, any Under Secretary, Assistant Secretary, Judge Advocate General, or commanding officer to remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence prescribed by the President.  It also allows the Secretary concerned to, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.

10.  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 Army Board for Correction of Military Records 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.

11.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfer and discharge functions for all officers on active duty for 30 days or more.

	a.  Paragraph 1-22(a) states an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty or upon the final revocation of a security clearance for reasons that do not involve acts of misconduct.  

	b.  Paragraph 1-22(b) states an officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an Honorable discharge.

	c.  Paragraph 1-22(c) states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  A discharge certificate will not be issued.  Officers will normally receive an under other than honorable conditions characterization of service when they resign for the good of the service; are dropped from the rolls of the Army; are involuntarily separated due to misconduct, moral or professional dereliction; are discharged following conviction by civilian authorities; or when the final revocation of a security clearance is a result of an act or acts of misconduct, including misconduct for which punishment was imposed.

	d.  Paragraph 1-22e states no formal discharge certificate will be issued when the officer is dismissed as a result of sentence of court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial of larceny.  The Court sentenced him to dismissal from the service and the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  The U.S. Court of Appeals for the Armed Forces denied his petition for a grant of review.

2.  His trial by a general court-martial was warranted by the gravity of the offense charged.  His conviction and dismissal were effected in accordance with applicable law and regulations and the dismissal appropriately characterized the misconduct for which he was convicted.  Any contentions he may have with regard to his court-martial would or should have been addressed during the court-martial or the appellate process.  That was the appropriate forum to address issues of this nature.  

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 or dismissal if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Absent any sufficiently mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  In view of the foregoing, there is an insufficient evidentiary basis to support clemency 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)                                         AR20140008037



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ABCMR Record of Proceedings (cont)                                         AR20140008037



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