RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 February 2008
	DOCKET NUMBER:  AR20070009930 


	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. Kenneth L. Wright

Chairperson

Mr. Antonio Uribe

Member

Mr. Ronald D. Gant

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 that his dishonorable discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, that his counsel never discussed the possibility of his not receiving a military retirement.

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214), Enlisted Record Brief, and General Court-Martial Order Number 19, dated 13 October 2006.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 10 December 1984, the applicant enlisted in the Regular Army.   He completed his initial training and was awarded military occupational Specialty 52D1O (Power Generator Equipment Repairer).  He served through a series of reenlistments and attained the rank of staff sergeant on 1 November 1997.

3.  On 17 March 1993, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for willfully destroying the property of another Soldier.  The punishment included a forfeiture of $333.00 pay per month for 1 month.  He did not appeal the punishment.

4.  On 15 September 2004, the applicant was approved for retirement effective 28 February 2005. 



5.  On 17 December 2004, charges were preferred under the UCMJ.  Charge I was for violation of Article 120, for rape of a person under 12 years of age; Charge II was for violation of Article 134, for committing an indecent act upon the body of a person who was under 16 years of age; and Charge III was for violation of Article 107, two specifications, for making false sworn statements.  These charges were served on the applicant on 5 May 2005.

6.  On 22 December 2004, the applicant was extended on active duty until 
28 August 2005.  His retirement was suspended by the Department of the Army on 31 December 2004.

7.  On 26 May 2005, the applicant requested trial before a military judge alone.  

8.  On 8 June 2005, the applicant offered to plead guilty to Charge I and its specification, and not guilty to the remaining charges and specifications in return for the convening authority approving no more than 7 years confinement.  The offer to plead guilty was accepted by the convening authority on 8 June 2005.

9.  On 28 June 2005, the applicant, before a military judge, sitting as a General Court-Martial, pled guilty to a single charge of rape.  A "Stipulation of Fact" was entered into evidence essentially saying that in October 2002, the applicant had engaged in an act of sexual intercourse with the 7-year old daughter of his girlfriend.  

10.  The military judge accepted the applicant's plea and found him guilty of Charge I and its specification, and not guilty of the remaining two charges and specifications.  The military judge sentenced the applicant to reduction to private (pay grade E1), confinement for 17 years, and to be dishonorably discharged.  

11.  On 12 August 2005, the Staff Judge Advocate summarized the applicant's service and recommended approval of only so much of the sentence as provided for a dishonorable discharge, confinement for 7 years, and reduction to the grade of E1.

12.  On 22 September 2005, the Acting Staff Judge Advocate submitted to the convening authority a written addendum to his recommendation.  The applicant's counsel had requested that the dishonorable discharge be disapproved and that his retirement rights be restored; reconsider the deferment request and waive the automatic forfeiture of pay for 6 months for the benefit of his children.  The Acting Staff Judge Advocate opined that clemency was warranted and recommended that the convening authority grant a waiver of the automatic forfeiture of pay and allowances for the maximum period authorized by law, or until the applicant's expiration term of service, solely for the benefit of Ms. D.E [One of the children].  He recommended no other clemency.   The convening authority considered these matters and directed the waiver of the automatic forfeiture of pay and allowances and payment solely for the benefit of Ms. D.E.
 
13.  On 22 September 2005, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement for 7 years, and reduction to the grade of E1.  Except for that part of the sentence extending to a dishonorable discharge, the sentence was ordered to be executed.  The automatic forfeiture of pay and allowances and reduction in grade that was deferred effective 12 July 2005 was terminated.  The forfeiture of all pay and allowances was waived effective 22 September 2005 until 20 March 2006, solely for the benefit of Ms. D.E.

14.  On 28 April 2006, the United States Army Court of Criminal Appeals reviewed and denied the applicant's petition.  It affirmed the findings of guilty and the sentence.

15.  General Court-Martial Order Number 19, Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 13 October 2006, provided that the sentence to be reduced to private, pay grade E1; to forfeit all pay and allowances; to be confined for 7 years and to be discharged with a dishonorable discharge from the United States Army, adjudged on 28 June 2005, had been affirmed.  The automatic forfeiture of pay an allowances and reduction in grade were deferred starting 12 July 2005 and the deferment ended on 
22 September 2005.  The forfeiture of all pay and allowances required by Article 58b, UCMJ, was waived effective 22 September 2005 until 20 March 2006 with directions that these funds be paid to Mrs. D.E.  Furthermore, it stated that the provisions of Article 71c, UCMJ, had been complied with and the dishonorable discharge would be executed.

16.  The applicant's Certificate of Release or Discharge from Active Duty 
(DD Form 214) shows that he was discharged on 26 October 2006 under the provisions of Army Regulation 635-200, chapter 3.  He received a dishonorable discharge.







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, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The applicant's contention that he suffered an injustice because his counsel did not discuss the possibility of his receiving a retirement is not substantiated by any evidence.  In fact, his counsel had submitted, on the applicant's behalf, a request to restore his retirement rights. 

3.  The applicant received a significant benefit under the terms of his pretrial agreement in that it saved him 10 years of confinement.  The fact that this agreement permitted the convening authority to approve any adjudged punitive discharge put the applicant on notice that he could lose his retirement.  Indeed, his offense of raping a 7 year old was so serious that a punitive discharge was almost a foregone conclusion. 

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ KLW__  __AU ___  __RDG  __  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.





___ Kenneth L. Wright _____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.