RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 September 2007
	DOCKET NUMBER:  AR20070003121 


	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

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. Dean A. Camarella

Member

Mr. Qawiy A. Sabree

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 dishonorable discharge (DD) be upgraded.

2.  The applicant states, in effect, that his DD should be upgraded due to the severity of his punishment. 

3.  The applicant provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army on 2 July 1987.  He completed his basic combat training at Fort Dix, New Jersey, and his advanced individual training at Aberdeen Proving Ground, Maryland.  After completing all required training, he was awarded the military occupational specialty (MOS), 63J, Quartermaster and Chemical Equipment Repairman.  He was promoted to staff sergeant (SSG/E-6) effective 1 March 1997.  He was later trained in MOS 52C, Utilities Equipment Repairer.

2.  At a general court-martial on 20 July 2001, the applicant entered mixed pleas to numerous offenses under the UCMJ (Uniform Code of Military Justice).  He was found guilty of non-forcible sodomy, with a child under the age of 16, on or about 10 July 2000, and indecent acts upon a child, under the age of 16, between on or about 1 July 2000 and on or about 15 July 2000, in violation of Article 125 and 134, of the UCMJ.  His sentence consisted of confinement for 8 years and a dishonorable discharge.  The sentence was approved and except for the DD, was ordered executed.  He was credited with 16 days confinement against the sentence to confinement.  The forfeiture of pay and allowances required by Article 58b, of the UCMJ, was waived effective 3 August 2001 to 26 December 2001, with direction that such monies be paid to the applicant's spouse.

3.  The applicant was reduced to pay grade E-1 effective 3 August 2001.

4.  On 8 October 2004, the United States Army Court of Criminal Appeals affirmed the approved findings and sentence.

5.  On 30 June 2005, the US Court of Appeals for the Armed Forces denied the applicant's petition for review.  

6.  On 21 September 2005, United States Army Combined Arms Center and Fort Leavenworth, United States Disciplinary Barracks, Fort Leavenworth, Kansas, published General Court-Martial Order Number 22.  This order announced that the sentence imposed was finally affirmed, and, Article 71(c) having been complied with, directed execution of the DD.

7.  On 16 December 2005, the applicant was discharged from the Army pursuant to the sentence of the general court-martial and was issued a DD.  He had completed 18 years, 5 months, and 15 days of creditable service.  

8.  The applicant's case is ineligible for review by the Army Discharge Review Board (ADRB) due to his conviction by a general court-martial.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-10 of that regulation provides that a Soldier 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 sentence affirmed before it can be duly executed.

10.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

11.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  The Manual for Courts-Martial provides the maximum sentences that may be imposed if convicted at trial by court-martial.  It provides, in pertinent part, that the maximum sentence that may be imposed for a conviction by a court-martial, for a single violation of Article 125 (Sodomy), with a child under the age of 16, and a singe violation of Article 134 (Indecent acts), with a child under the age of 16, is a dishonorable discharge, a forfeiture of all pay and allowances, and confinement for 27 years.  

13.  Title 10, United States Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was convicted by a general court-martial and was found guilty of non-forcible sodomy, with a child under the age of 16, on or about 10 July 2000, and indecent acts upon a child, under the age of 16, between on or about 1 July 2000 and on or about 15 July 2000.  He was discharged pursuant to the sentence of a general court-martial and was issued a DD after the sentence was affirmed.

2.  The general court-martial the applicant received on 20 July 2001 was warranted by the gravity of the offenses charged.  A dishonorable discharge is adjudged by a court-martial when it determines a Soldier should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment.  The applicant's offenses, when weighed with his overall disciplinary history, warranted this punishment.

3.  The applicant alleged that his dishonorable discharge should be upgraded due to the severity of the punishment.  It is noted that the maximum sentence that could have been imposed on the applicant was a DD, confinement for 27 years, and forfeiture of all pay and allowances.  The evidence shows that he was credited with 16 days of confinement against the sentence to confinement, which consisted of 8 years.  

4.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's dishonorable discharge.

5.  The applicant committed sodomy on a child under the age of 16 and, on numerous occasions, committed indecent acts against this child victim.  These offenses warranted severe punishment.  The applicant's sentence to a DD was, in light of all of the circumstances of this case, appropriate. 


6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___QS___  __DC___  __JCR__  DENY APPLICATION

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 for correction of the records of the individual concerned.




______Jeffrey C. Redmann   __
          CHAIRPERSON




INDEX

CASE ID
AR20070003121
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070920
TYPE OF DISCHARGE
DD
DATE OF DISCHARGE
20051216
DISCHARGE AUTHORITY
AR 635-200, chapter 3 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.