BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160003766 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 BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160003766 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 Army Board for Correction of Military Records set forth in Docket Number AR20150006279, dated 7 January 2016. ___________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. BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160003766 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 reconsideration of his earlier request to upgrade his bad conduct discharge to honorable. 2. The applicant states, in effect: a. He was punished twice for assault and using marijuana. He received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for both offenses and he was court-martialed for the same offenses. It constitutes double jeopardy for the Army to charge him twice for these offenses. b. He is a man who can admit he is wrong and change from it. Everyone deserves a chance to have a good life if he or she is willing to do right. He is a changed man and lives his life doing right for his family. c. He received a bad conduct discharge for desertion, using marijuana, making a false official statement, and assault. He took a deal for two charges that he already had been punished for. He received NJP under Article 15 of the UCMJ for the assault and using marijuana charges. During his court-martial hearing, he told his military lawyer that he was being punished twice. His lawyer told him there was nothing he could do about it and advised him that he should take the deal because he would get a lot more jail time if he didn't. Now he is older and smarter and realizes his lawyer wasn't on his side because charging him twice constitutes double jeopardy. If his lawyer cared, he could have helped him and he would still be in the Army. The mistakes he made were his fault and he deserved to be punished, but kicking him out with a bad conduct discharge was not right for being absent without leave and making a false statement. d. He was in jail with people with worse charges and they returned to their units. He hates himself for losing his life in the Army. 3. The applicant provides: * three applications * Sacramento City College Certificate of Achievement 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 AR20150006279 on 7 January 2016. 2. The applicant's contention that his court-martial conviction and resultant discharge constitutes double jeopardy is new evidence in the form of an argument that was not previously considered by the Board and warrants consideration at this time. 3. The applicant enlisted in the Regular Army on 10 February 2000 for a period of 6 years. 4. On 11 January 2002, he was convicted by a general court-martial of assault, making a false official statement, using marijuana, and desertion. He was sentenced to discharge from the service with a bad conduct discharge, confinement for 1 year, and reduction to E-1. On 1 May 2002, the convening authority approved only so much of the sentence as provided for reduction to E-1, confinement for 10 months, and a bad conduct discharge. 5. On 17 October 2002, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. 6. On 13 January 2003, his petition for grant of review of the U.S. Army Court of Criminal Appeals was denied. 7. Headquarters, U.S. Army Armor Center and Fort Knox, General Court-Martial Order Number 56, dated 24 February 2003, affirmed the applicant's sentence and ordered the bad conduct discharge duly executed. 8. He was issued a bad conduct discharge on 13 May 2003 under the provisions of Army Regulation 635-200 as a result of court-martial conviction. He completed 2 years, 7 months, and 7 days of creditable active service with 237 days of lost time. 9. There is no evidence showing he received NJP under Article 15 of the UCMJ for assault or using marijuana. 10. On 7 January 2016, the ABCMR denied his request for an upgrade of his bad conduct discharge. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for 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. 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. c. Paragraph 3-11 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. DISCUSSION: 1. The evidence of record shows the applicant was issued a bad conduct discharge on 13 May 2003 as a result of a general court-martial sentence. 2. Although he contends he was punished twice for committing assault and using marijuana, there is no evidence showing he received NJP under Article 15 of the UCMJ for these offenses. 3. His contention that his discharge should be upgraded on the basis of protection from double jeopardy relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial/appellate process. 4. His trial by court-martial was warranted by the gravity of the offenses charged. His record of service included one general court-martial conviction for serious offenses including assault, making a false statement, using marijuana, and desertion. 5. His conviction and discharge were effected in accordance with applicable law and regulations and the type of discharge he received appropriately characterizes the misconduct for which he was convicted. 6. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003766 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003766 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2