IN THE CASE OF:
BOARD DATE: 30 July 2015
DOCKET NUMBER: AR20150000046
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 general discharge and that his separation date be corrected.
2. The applicant states that the "dont ask don't tell" rule was still in effect in Germany and he was a homosexual who pretended to be engaged to a female Soldier to avoid persecution. He goes on to state that she got mixed up in something and fled the unit and he was held responsible. He also states that throughout the court-martial there was no evidence that he had anything to do with the charges and the judge just told him to plead guilty and everything would be over. He states that he was not guilty and believed that it would work out with his sentence consisting of his finishing his tour, being relocated back to the States and demoted.
3. The applicant provides a one-page letter explaining his application, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and his appeal of his court-martial proceedings.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 12 July 1991 for a period of 4 years, training as a medical specialist and assignment to Europe. He completed his basic training at Fort Leonard Wood, Missouri and his advanced individual training at Fort Sam Houston, Texas before being transferred to Germany on 4 January 1992.
2. On 29 January 1994, the applicant was convicted contrary to his pleas by a General Court-Martial of conspiracy to possess and distribute lysergic acid diethylamide (LSD), wrongful possession of LSD, wrongful use of LSD, and seven specifications of wrongful distribution of LSD. He was sentenced to confinement for 2 years, reduction to the pay grade of E-1, forfeiture of all pay and allowances and a BCD.
3. The applicant was placed on excess leave pending the appellate review of his case.
4. On 31 January 1996, the U.S. Army Court of Criminal Appeals affirmed the findings and sentence as approved by the convening authority.
5. On 10 March 1997, the applicant was in an excess leave status when he was discharged pursuant to a duly-affirmed court-martial conviction. He had served 4 years, 1 month, and 17 days of active service and he had 456 days of lost time due to being in 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.
7. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel. 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.
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 and supporting documents have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offenses. 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.
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