ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20190005651 APPLICANT REQUESTS: * Voiding of his general court-martial * Upgrade of his bad conduct discharge to honorable * Upgrade of his pay grade to staff sergeant (SSG)/E-6 * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Court-Martial Convening Order * Trial Counsel Detailing Order * Two General Court-Martial Orders FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 the general court-martial that convicted him lacked jurisdiction. a. The General Court-Martial Convening Order Number 1, dated 24 July 1989, and issued by Headquarters, U.S. Army Training Center and Fort Jackson, was signed by Major (MAJ) J. J__ S__; this is a violation of the Rules for Courts-Martial (RCM), Number 504(b)(4) (Convening Courts-Martial – Delegation Prohibited), wherein it states the power to convene a courts-martial may not be delegated. MAJ J. J__ S__ was the trial counsel. b. The charges against the applicant were not preferred until 1 August 1989, which violated RCM Number 405 (Pre-Trial Investigation); in further violation of RCM Number 405, the General Court-Martial Convening Order was done prior to the Article 32 Pre- Trial Investigation. 3. The applicant provides: * Court-Martial Convening Order Number 1, dated 24 July 1989, stating a general court-martial was convened on that date, and the court was constituted of nine members (identified by name and rank), by order of the General Court-Martial Convening Authority (GCMCA); document signed by MAJ J. J__ S__ * Trial Counsel Detailing Order, dated 1 October 1989, showing MAJ J. J__ S__ was detailed as trial counsel for the applicant's trial * Two General Court-Martial Orders, reflecting the charges for which the applicant was convicted, the sentence imposed, the GCMCA action taken, and the final action upon completion of the appellate review 4. The applicant's service records show: a. He enlisted into the Regular Army on 30 October 1979. On 5 September 1985, he immediately reenlisted for a 3-year term. Effective 20 November 1985, his chain of command promoted him to SSG/E-6. On 7 October 1988, the applicant immediately reenlisted for an additional 6 years. b. On 12 October 1989, a general court-martial convicted the applicant of Uniform Code of Military Justice (UCMJ) violations. (1) Contrary to his pleas, the court found him guilty of three specifications of wrongful distribution of cocaine. The court sentenced him to 12 years confinement, reduction to private/E-1, and a bad conduct discharge; he was immediately placed in confinement. (2) On 13 December 1989, the GCMCA approved the sentence and, except for the bad conduct discharge, directed the sentence to be executed. c. On 25 February 1991, the U.S. Army Court of Military Review issued a memorandum opinion. The applicant had filed an appeal, in which he alleged he was denied effective counsel because his counsel failed to object to evidence of uncharged drug distributions; the convening authority's pre-trial actions disqualified him from post- trial action; and the applicant was prejudiced when the trial judge failed to suppress certain evidence. The U.S. Army Court of Military Review found the applicant's allegations lacked merit; the court affirmed the findings of guilt and the sentence. d. On 14 August 1993, the U.S. Court of Military Appeals documented that it had affirmed the aforementioned decision by the U.S. Army Court of Military Review. e. On 13 January 1993, a general court-martial order announced the appellate review had been completed and directed the execution of the applicant's bad conduct discharge; the order further directed the applicant be confined at the U.S. Disciplinary Barrack, or elsewhere as directed. f. On 12 February 1993, the applicant was separated with a bad conduct discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he completed 1 year and 5 days of his last enlistment contract; he had lost time from 12 October 1989 through 12 February 1993. In addition, his DD Form 214 reflected his continuous honorable service from 30 October 1979 through 6 October 1988, and that he was awarded or authorized the following: * Army Good Conduct Medal (3rd Award) * Army Achievement Medal (4th Award) * Army Commendation Medal (2nd Award) * Joint Service Medal * Noncommissioned Officer Professional Development Ribbon with Numeral 2 * Army Service Ribbon * Overseas Service Ribbon * Army Superior Unit Award 5. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR on a case-by-case basis. 6. The applicant asserts his general court-martial lacked jurisdiction because: a. The court-martial convening order was signed by the trial counsel instead of the GCMCA and was prepared prior to the pre-trial investigation (conducted under Article 32, UCMJ). Per Army Regulation (AR) 27-10 (Military Justice), in effect at the time, the following applied to court-martial convening orders: (1) Convening authorities announced, via a convening order, those members designated by them to participate in courts-martial; this was to be done as soon as practicable, and the order directed those members to try such persons as may be properly brought before it. (2) Concerning the assertion the trial counsel signed the convening order instead of the GCMCA, convening orders were prepared the same as other orders, in that they were not routinely signed by the respective order authority. By showing an authority line, the convening authority was affirming he/she had personally acted in the selection of the personnel listed in the order. "BY COMMAND OF" was used when the convening authority was a general officer. b. The charges against the applicant were not preferred until 1 August 1989, which violated RCM Number 405 (Pre-Trial Investigation); in further violation of RCM Number 405, the General Court-Martial Convening Order was done prior to the Article 32 Pre- Trial Investigation. (1) RCM Rule Number 405 states no charge or specification may be referred (not preferred) to a general court-martial for trial until a thorough and impartial investigation of the charges had been conducted. (2) Preferral means a person subject to the UCMJ has sworn charges against another member who is also subject to the UCMJ. When charges are referred, they have been submitted for members, designated by a court-martial convening order, to hear the case. 7. With regard to the applicant's requests to void his general court-martial, upgrade his character of service to honorable, and, in effect, restore his pay grade to SSG/E-6: a. By law, court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. b. AR 600-8-104 (Army Military Human Resource Record Management), currently in effect, requires court-martial orders to be filed in the performance folder of a Soldier's official personnel record. c. AR 600-37, in effect at the time, provided a mechanism for ensuring unsupported or unresolved unfavorable information was not filed in a Soldier's service record. It stated, however, once adverse information was accepted for inclusion in the service record by Headquarters, Department of the Army (HQDA), the individual bore the burden of proof to show the document or documents were either unjust or untrue. Substantive evidence was required, and merely alleging an injustice or error had occurred was not sufficient for a claim to be considered. 8. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statements regarding his court-martial proceedings and jurisdiction, his record of service, the frequency and serious nature of his misconduct and whether to apply clemency. The Board found that applicant provided no post-service achievements or letters of reference in support of a clemency consideration. The Board determined that there was no denial of due process during the applicant’s court-martial and that the character of service he received and the reduction in grade was not in error or unjust. Additionally, the Board found that the court-martial finding were affirmed and and after careful review, found there was insufficient evidence to void the General Court Martial. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, 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 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. With respect to 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 actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (Bad Conduct Discharge). A Soldier were given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence ordered duly executed. 3. Manual for Court-Martial, 1984, provided the following rules for court-martial: a. RCM Rule Number 307 (Preferral of Charges). Any person subject to the UCMJ may prefer charges; the person must sign the charges and specification under oath. b. RCM Rule Number 405 (Pre-Trial Investigation). No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of the charges has been conducted. c. RCM Rule Number 407 (Action by Commander Exercising General Court-Martial Jurisdiction). On receipt of charges, the GCMCA may dismiss charges, forward charges to either a subordinate or superior commander for disposition, or direct a pre- trial investigation, per RCM Rule Number 405. Once completed, the GCMCA can refer charges to a general court-martial. d. RCM Rule Number 503 (Detailing Members, Military Judge, and Counsel). The convening authority shall detail qualified persons as members for courts-martial. e. RCM Rule Number 504 (Convening Courts-Martial). A court-martial is created by a convening order of the convening authority. A general court-martial may be convened by a GCMCA; the power to convene courts-martial may not be delegated. 4. Army Regulation (AR) 27-10 (Military Justice), in effect at the time, prescribed polices for the administration of military justice. Chapter 12 (Court-Martial Orders) outlined procedures for the issuance of court-martial orders. It stated: * Convening orders were used to announce the detail of members for a general court-martial; the convening authority was to issue convening orders as soon as practicable after he/she personally determined the court-martial members * Court-martial orders were authenticated the same as other orders; the authority line indicated the court-martial convening authority had personally acted with respect to the selection of the personnel named in the order; when the convening authority was a general officer, the order was to show "BY COMMAND OF" 5. 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 on the basis of 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. 6. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR on a case-by-case basis. 7. AR 600-8-104 (Army Military Human Resource Record Management) provides policies, operating tasks, and steps governing the OMPF. Table B-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the OMPF. Table B-1 states court-martial orders are to be filed in the performance folder of a Soldier's official personnel record. 8. AR 600-37 (Unfavorable Information), in effect at the time, prescribes policies and procedures for the resolution of unfavorable information, and to ensure unsupported or unresolved unfavorable information, which may prejudice the individual's reputation or future in the military service, is not filed in the individual's official military personnel file (OMPF) (formerly referred to a military service record). a. Paragraph 1-4 states the objectives are to apply fair and just standards to all Soldiers, and to protect the rights of individual Soldiers while at the same time protecting the right of the Army to consider all available information when selecting individuals for positions of leadership, trust, and responsibility. Additionally, this regulation provides safeguards from adverse personnel actions based on unsubstantiated allegations or mistaken identity, to provide a means for correcting injustices, and to ensure individuals of questionable moral character are not continued in the service or elevated to positions of leadership and responsibility. b. Chapter 7 (Appeals and Petitions) provides procedures for revising, amending, or eliminating unfavorable information from a Soldier's OMPF. Once an official document containing adverse information is accepted by Headquarters, Department of the Army for inclusion in the OMPF, the individual has the burden of proof to show the document or documents are either unjust or untrue. Substantive evidence must be submitted to support a claim and an appeal that merely alleges an injustice or error is not acceptable and will not be considered. ABCMR Record of Proceedings (cont) AR20190005651 6 1