IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150007721 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150007721 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150007721 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 dishonorable discharge be upgraded to an under honorable conditions (general) discharge. 2. He states the findings of guilty of Charge II, bigamy and its specifications and the Additional Charge II, making false statements and its specifications, were dismissed by the U.S. Army Criminal Court of Appeals. 3. He provides: * General Court-Martial Order Number 25, dated 28 March 2013 * United States Army Court of Criminal Appeal, Summary Disposition on Remand, dated 14 November 2012 * Daily Journal for July 2012 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 8 July 1982. He was honorably discharged on 22 January 1987 for the purpose of immediate reenlistment which was accomplished the following day. 3. General Court-Martial Order Number 29, published by Headquarters, 3d Armored Division, dated 3 March 1988, shows he was found guilty on 17 December 1987 of the following offenses: * Charge I, Article 118: * Specification 1, premeditated murder of PHM by means of choking her, striking her in the head with a hammer, and submerging her head in a bathtub until she drowned * Specification 2, premeditated murder of TAH by means of striking him in the head, throwing him against the wall, and submerging his head in a bathtub until he drowned * Specification 3, premeditated murder of JTH by submerging his head in a bathtub until he drowned * Charge II - Article 134: * Specification 1, committing bigamy by wrongfully marrying BLR having at the time of his said marriage to BLR a lawful wife then living, to wit PHM * Additional Charge I - Article 121: * Specification 1: stealing from PHM by means of force and violence against her will two sets of keys and an Armed Forces identification card; * Additional Charge II - Article 134: * Specification, wrongfully and unlawfully making false statements 4. The court sentenced him to death, a reduction to pay grade E-1, and a forfeiture of all pay and allowances. The convening authority approved the sentence and except for the part of the sentence extending to death, ordered it executed. 5. On 25 May 1990, the U.S. Army Court of Military Review directed the correction of General Court-Martial Order Number 29 to reflect as to the Specification of Additional Charge II, a Plea of Not Guilty and a Finding of Guilty. 6. On 13 May 2010, he was sentenced to a reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for the length of his natural life, and to be dishonorably discharged from the service. 7. On 10 November 2010, General Court-Martial Order Number 7, issued by Headquarters, U.S. Army Combined Arms Center, Fort Leavenworth, KS, vacated the sentence as promulgated in General Court-Martial Order Number 29, issued on 3 March 1988, as corrected by the Notice of Court-Martial Correction, dated 25 May 1990, issued by the U.S. Army Court of Military Review, and authorized a rehearing of the sentence. 8. Pursuant to Court-Martial Convening Order Number 3, Headquarters, Combined Arms Center, Fort Leavenworth, KS, dated 24 April 2009, as subsequently amended multiple times, a rehearing on sentence only was ordered. 9. On 13 May 2010, the rehearing of the sentence was held before a general court-martial convened at Fort Leavenworth. The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, confinement for the length of his natural life, and a dishonorable discharge. 10. On 10 November 2010, the convening authority approved the sentence and except for the portion of the sentence extending to a dishonorable discharge, he ordered it executed. 11. General Court-Martial Order Number 25, issued by Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK, shows the findings of guilty to Charge II and its Specification and the Additional Charge II and its Specification were set aside and dismissed. The remaining findings of guilty and the sentence to reduction to the lowest enlisted grade, forfeiture of all pay and allowances, confinement for the length of his natural life and dishonorable discharge adjudged on 13 May 2010, was affirmed. All rights, privileges, and property of which the applicant had been deprived by virtue of that portion his sentence set aside were ordered restored. The dishonorable discharge was ordered to be executed. 12. The applicant was discharged from the Army on 19 April 2013. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial, other. He was given a dishonorable discharge. He was credited with completing 5 years, 8 months, and 15 days of net active service with time lost from 31 August 1987 through 19 April 2013. REFERENCES: 1. 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. 2. Army Regulation 635-200 sets forth the basic authority 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. Army Regulation 635-200, 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: 1. The applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time. The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 2. He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 3. Regardless of the fact that two of his charges were set aside and dismissed, the evidence shows he was still found guilty of three premeditated murders. The evidence in this case does not support clemency. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007721 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007721 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2