ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 July 2019

	DOCKET NUMBER:  AR20170015068


APPLICANT REQUESTS:  dismissal of court-martial charges and upgrade of his dishonorable discharge to either general or honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record). 

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states General Court-Martial Order Number 43 that found him guilty of charges should dismissed or overturned.  He was wrongfully convicted and was not allowed to properly present his case.  He is seeking a new discharge of general or honorable and requesting pay for lost time due to the travesty and miscarriage of justice.  He was given ineffective counsel as a result of his counsel being in a relationship with the executive officer of the unit that brought charges against him.  He has in his possession, physical evidence proving his innocence.  There are inconsistencies with the statements that were never addressed.  He has been in the custody of the State of Colorado since his court-martial.  A full review of his court-martial and military file will clearly show he was not the suspect and the reason his court martial should be overturned. 

3.  The applicant’s service records shows:

	a.  He served in the U.S. Marines from 1 February 1989 to 31 May 1993.

	b.  He enlisted in the Regular Army on 30 June 1993.

	c.  He served on temporary duty assignments of 6 months or less in Saudi Arabia, Africa, Alaska and Japan.

	d.  On 7 July 1995, he was convicted by general court-martial of one specification of rape on or about 19 September 1994 and one specification of larceny of military property on or about 19 September 1994.  The court sentenced him to a dishonorable discharge, confinement for life, and reduction to private/E-1).  

	e.  On 19 September 1995, the convening authority approved the sentence and except for that part of the sentence extending to a dishonorable discharge, will be executed, but the execution of that part of the sentence adjudging confinement in excess of 27 years is suspended for 27 years from the date the sentence was adjudged, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will.be remitted without further action.  Further, the execution of that part of the sentence adjudging confinement is postponed, effective the date of this action, and will not begin until such time as the applicant has been permanently released to the armed forces. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. 

	f.  On 14 November 1995, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

	g.  General Court-Martial Order Number 224, dated 18 September 1997 affirmed the sentence to a dishonorable discharge.  The provisions of Article 71(c) had been complied with, and the bad conduct discharge would be duly executed.

	h.  On 10 October 1997, the applicant was discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 3 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) with a dishonorable discharge.  He completed 1 year, 3 months, and 20 days of active service with 1071 days of lost time.  His DD Form 214 also shows he was awarded or authorized;

* Meritorious Service Medal
* Meritorious Unit Commendation
* Navy Unit Commendation
* Marine Corps Good Conduct Medal
* National Defense Service Medal
* Southwest Asia Service Medal (2nd Award)
* Army Service Ribbon
* Sea Service Deployment Ribbon (2nd Award
* Expert Marksmanship Qualification Badge with Rifle Bar

4.  By law (Title 10, U.S. Code, section 1552), 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 the Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is 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.

5.  By regulation, a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

6.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the offense of a serious criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.  In addition, the applicant is advised that the Board is not empowered to set aside court-martial convictions.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


	 
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.


REFERENCES:
1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) states that an honorable discharge is a separation with honor.  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 (General discharge) states that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-10 states a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

3.  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.

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170015068


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