RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 August 2007
	DOCKET NUMBER:  AR20070001665 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Robert W. Soniak

Member

Ms. Karmin S. Jenkins

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge be upgraded to honorable.

2.  The applicant states that he has been a very productive citizen since his release from the service.  

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214); Service School Academic Evaluation Report; two General Court-Martial Orders; police background check; three letters of support from his church pastor, employer, and neighbor; and an Application for Review of Discharge or Dismissal from the Armed Forces of the United States (DD Form 293) with enclosures.

CONSIDERATION OF EVIDENCE:

1.  On 4 May 1982, the applicant enlisted in the Regular Army for 3 years.  He served through a series of enlistments and attained the rank of staff sergeant, pay grade E6. He was awarded military occupational specialty 63T3O (Bradley Vehicle System Mechanic) and 54B3O (Chemical Operations).

2.  On 30 November 1993, the applicant was assigned for duty as a drill sergeant with the 82nd Chemical Battalion, Fort McClellan, Alabama. 

3.  Charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 92 (Prohibited Practices, Charge I and IV, three specifications); Article 93 (Oppression and Maltreatment, Charge II and V, three specifications); and Article 134 (Adultery, Indecent Act, and Obstruction, Charge III, VI, and VII). 

4.  During the period 22-24 March 1995, the applicant pled not guilty before a panel of members at a general court-martial to all charges and specifications.  The members of the court-martial found him guilty of Charge I, Specification 2; Charge II, Specification 2; Charge III, Specification 2; Charge IV; Charge V; and Charge VI, Specification 2.  It found him not guilty of all remaining charges and specifications.  He was sentenced to a bad conduct discharge, confinement for
1 year, and reduction to private, pay grade E1.

5.  On 23 June 1995, the Staff Judge Advocate summarized the applicant's service and recommended approval of his sentence, and, except for that part extending to a bad conduct discharge, be executed.
6.  On 21 July 1995, the convening authority approved all recommendations of the Staff Judge Advocate.

7.  General Court-Martial Order Number 188, Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, dated 7 November 1997, provided that the United States Army Court of Criminal Appeals by opinion of the Court, dated 10 January 1997, set aside the findings of guilty of Specification 2 of Charge II and Charge II and Specification 2 were dismissed.  The findings of guilty of Charge V and its specification were set aside and Charge V and its specification were dismissed.   After appellate action, the applicant had been found guilty of twice violating a lawful regulation by engaging in sexual relations with two women who were junior enlisted trainees assigned within his company while he served as a drill sergeant and by committing adultery as a result of these activities.  The remaining findings of guilty were affirmed.  Reassessing the sentence in light of the errors noted, only so much of the sentence as provided for reduction to private, E1, confinement for 10 months, and a bad conduct discharge, adjudged on 24 March 1995, as promulgated in General Court-martial Order Number 6, United States Army Chemical and Military Police Centers and Fort McClellan, Fort McClellan, Alabama 36305, dated 21 July 1995, was finally affirmed.  Article 71(c) having been complied with, the bad conduct discharge was duly executed.  That portion of the sentence pertaining to confinement was served.

8.  The applicant's DD Form 214 shows that he was discharged on 6 February 1998 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial.  He received a bad conduct characterization of service.

9.  The applicant's letters of support tell of his being a faithful and active member of his church; of his being an extremely efficient and competent employee that has high values and loyalty to work and family; and of his being a good neighbor who is an excellent role model for his four children and other teenagers in his neighborhood.

10.  Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.  Additionally, there have never been any provisions for an automatic upgrade of such discharges.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations. Therefore, there is no legal basis for granting the applicant's request for relief.

2.  The applicant’s good post-service conduct is noted.  However, it does not sufficiently mitigate his offenses committed during his military service.

3.  In view of the foregoing, there is no basis for granting the applicant's request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RWS__  __KSJ___  __CLG__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 for correction of the records of the individual concerned.





_     _Curtis L. Greenway________
          CHAIRPERSON




INDEX

CASE ID
AR20070001665
SUFFIX

RECON
 
DATE BOARDED
20070802
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19980206
DISCHARGE AUTHORITY
AR .635-200 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
105.0000
2.

3.

4.

5.

6.