IN THE CASE OF: BOARD DATE: 27 April 2017 DOCKET NUMBER: AR20150019086 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: 27 April 2017 DOCKET NUMBER: AR20150019086 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: 27 April 2017 DOCKET NUMBER: AR20150019086 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, clemency and a character of service upgrade from dishonorable (DD) to honorable. 2. The applicant states, in effect: a. He believes it was unjust that he received a DD. He had an excellent record before his one mistake and received an honorable discharge when he reenlisted. It has now been 29 years, and he indicates he has not been in any trouble since. He has been a productive citizen. He feels everyone deserves a second chance. b. He is well aware it has been more than 30 years since his court-martial. He was told he would never be able to upgrade his character of service when he was released from Fort Leavenworth (apparently referring to the U.S. Disciplinary Barracks, Fort Leavenworth, KS). He was young, however, and had never been in trouble before. He acknowledges he made a terrible mistake (and he confirmed he wrote this in his letter to the President), but he points out he has been a model citizen since his release from prison. He has coached boy's baseball for over 10 years, worked with youth in church, and has never been without a job. c. He is now 51 years old and has two sons; one is 21 years old and the other is 16. He was proud to be a Soldier, and he would serve again if he could. He is begging for an upgrade or for a pardon. He truly believes he deserves a second chance. He wants to be able to attend Veterans' Day activities, wear his medals, and proudly show his pictures from the Army. He notes he was on a Presidential Quick Reaction Force, and when then-President Reagan went to Korea in 1983, he helped to guard him. Additionally, he was awarded the "Red Devil Chip" while at Fort Polk, LA, along with an Army Achievement Medal and a Noncommissioned Officer Professional Development Ribbon. He respectfully asks the Board to grant his request. 3. The applicant provides no additional documentary evidence. 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 27 May 1982. He served continuously through a reenlistment, and rose to the rank of sergeant. He held military occupational specialty 16R (Vulcan Crewmember). 3. While assigned to Germany, he was tried and convicted by a general court-martial. General Court-Martial Order Number 1, dated 8 January 1987, issued by Headquarters, 21st Support Command, shows: a. One charge and specification of murdering a child under the age of 16 years, by striking her about the head and face with such force and violence as to cause great bodily harm, and to result in massive head trauma, which caused her death. b. Two specifications of assaulting a child under age 16 by: * striking and squeezing her in the rib cage with his hands; intentionally inflicting grievous bodily harm and, thereby, breaking 9 or 10 ribs * striking her on the left eye and left side of her head with his hand c. The sentence was adjudged on 9 October 1986, and consisted of a DD, confinement for 5 years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade (private (PV1)/E-1). d. On 8 January 1987, the court-martial convening authority approved the sentence, and, except for the DD, ordered the remainder of the sentence to be executed. 4. On 30 November 1987, the U.S. Army Court of Military Review evaluated the applicant's case and affirmed the findings of guilty as well as the sentence. 5. On 7 October 1988, the U.S. Court of Military Appeals reviewed his case and affirmed the decision made by the U.S. Army Court of Military Review. 6. On 25 November 1988, a petition for writ of certiorari (a writ in which an appellate court decides, at its discretion, to review a lower court's case) was filed in the U.S. Supreme Court. The final result is not available for evaluation by the Board, but the petition was apparently unsuccessful. 7. General Court-Martial Order Number 73, dated 21 February 1989, issued by the U.S. Disciplinary Barracks, showed the sentence, consisting of a DD, confinement for 5 years, forfeiture of all pay and allowances, and reduction to PV1/E-1, was finally affirmed. As Article 71(c) had been complied with, the DD was ordered duly executed. The applicant was to serve the remainder of his confinement at Fort Leavenworth (or elsewhere, as competent authority may direct). 8. The applicant was discharged accordingly on 24 March 1989. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 1 month, and 9 days of net active creditable service, with lost time from 860217 through 860314, and 860731 through 890324. a. He was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar b. The separation authority is Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 (Character of Service/Description of Separation). c. The character of service is shown as DD and the narrative reason for separation is stated as being as a result of court-martial, other. 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. AR 635-200 prescribes the policy and procedures for enlisted separations. a. 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. 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. A DD is issued pursuant only to an approved sentence of a general court-martial. An appellate review must be completed, and the affirmed sentence ordered duly executed. DISCUSSION: The evidence of record confirms he was convicted by a general court-martial on 9 October 1986. a. He had been charged with committing multiple serious and violent offenses punishable under the Uniform Code of Military Justice. A punitive discharge was an available punishment for the offenses charged. The type of court-martial convened to adjudicate the charges was appropriate given the gravity of his misconduct. b. The appellate review was completed, and the sentence was affirmed and ordered duly executed. His conviction and discharge were effected in accordance with applicable laws and regulations. c. Based on the foregoing, it appears all requirements of law and regulation were met, and his rights were fully protected. 3. The applicant's statements regarding his post-service conduct are noted. 4. The law prohibits any redress of the finality of a court-martial conviction by this Board. The Board 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 review for clemency is focused on the period of active service, and whether an error or injustice occurred with regard to his court-martial. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150019086 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019086 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2