IN THE CASE OF:  	  

		BOARD DATE:  22 September 2015	  

		DOCKET NUMBER:  AR20150002579 


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 a reconsideration of his application for an upgrade of his bad conduct discharge (BCD) to an honorable discharge or a general discharge.

2.  The applicant also requests a copy of his entire official military personnel file.

3.  The applicant states he was not a bad Soldier; he just made some poor decisions that he regrets to this day.  If he could do it over again, he would make better decisions.  He states he was awarded three Army Achievement Medals during his service for his performance.

4.  The applicant provides copies of two letters of commendation with his request for reconsideration.
 
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 AR20130010522, on 27 February 2014.

2.  The National Personnel Records Center (NPRC), 1 Archives Drive, St. Louis, MO 63138 is the official custodian of service records.  All requests for copies of official military personnel records should be addressed to that agency.  Therefore, this portion of the applicant's request will not be further addressed.
3.  The letters of commendation and his claim that he received three Army Achievement Medals were not addressed in the prior Board’s review.  Therefore, they constitute new evidence or argument submitted within 1 year of his earlier application and require additional Board review.

4.  The applicant enlisted in the Regular Army for 3 years on 7 October 1980, completed training, and was awarded the military occupational specialty 13B (Cannon Crewmember).

5.  On 23 September 1981, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being incapacitated for proper performance of duties as a result of previous indulgence in intoxicating liquor.

6.  On 12 July 1982, the applicant received a letter of commendation from his battalion commander for his outstanding performance of duties during a .50 caliber M-60 machine gun range battalion exercise.

7.  On 8 August 1982, the applicant received a letter of commendation from his company commander for his outstanding duty performance during a North Atlantic Treaty Organization (NATO) battery training exercise held on 26 July 1982.

8.  On 16 August 1983, the applicant was apprehended by military police for driving on Fort Hood, TX, with a revoked license. 

9.  On 12 October 1983, he was convicted by a special court-martial for:

* operating a vehicle on Fort Hood, TX, while his driving privileges were suspended
* operating a vehicle on Fort Hood while intoxicated 
* wrongfully possessing marijuana 

10.  The court sentenced him to confinement for 2 months, forfeiture of $382.00 pay per month for 2 months, reduction to the lowest enlisted grade, and a BCD.

11.  On 9 November 1983, the court-martial convening authority approved the sentence and, except for the BCD, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

12.  In July 1984, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.
13.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, Special Court-Martial Order Number 80, dated 18 July 1984, shows that after completion of all required post-trial and appellate reviews, the court-martial convening authority ordered the applicant's BCD executed.

14.  He was discharged on 10 August 1984.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged by reason of court-martial with a BCD.  He had 3 years, 8 months, and 15 days of creditable military service with lost time from 12 October 1983 to 30 November 1983.  His awards are listed as the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Sharpshooter Marksmanship Qualification Badge with Grenade Bar, Army Service Ribbon, and the Overseas Service Ribbon.

15.  His available record contains no orders awarding him three Army Achievement Medals.

16.  The applicant's prior request for an upgrade was denied with the Board finding that the applicant's service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the Board determined clemency in the form of an honorable or general discharge was not warranted.  

17.  The statutory authority under which this Board functions (Title 10, U. S. Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

DISCUSSION AND CONCLUSIONS:

1.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this Board 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.  The applicant has not provided and the record does not contain any evidence that he was ever awarded three Army Achievement Medals.  

2.  Favorable action on a request for reconsideration must be based upon submission of new material evidence of such substance as might reasonably offer a basis for reversal of the prior decision.

3.  His letters of commendation for his duty performance during training exercises are insufficiently meritorious as to outweigh the conduct that led to his court-martial and BCD.  Therefore, clemency in the form of an honorable or a general discharge is 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 AR20130010522, dated 27 February 2014.



      ____________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)                                         AR20150002579



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ABCMR Record of Proceedings (cont)                                         AR20150002579



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