IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20070017753 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge. 

2.  The applicant states that the crime listed on his records follows him and his family throughout their lives and that he does not want his children to pay for his mistakes.  Specifically, the applicant presents the following arguments:

      a.  he was young and immature when he committed his offenses and that during his confinement, he realized how many people were hurt by his actions; and
      
      b.  after release from confinement, he straightened his life up, attended weekly rehabilitation classes, and sought help from professional doctors to deal with his remorse and shame.  He now has a steady job as well as a wife and two children and hopes that his request for an upgrade will not only help him get better work to provide for his family, but also help save his two children from being hurt in the future upon realizing what he did.  

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  Self-authored letter, dated 18 October 2007. 

	b.  Spouse character reference letter, dated 20 September 2007.

	c.  Mother character reference letter, dated 28 September 2007. 
	d.  Sister character reference letter, dated 27 September 2007.

	e.  Retired Chief of Police, West Helena, Arkansas, character reference letter, dated 23 September 2007.

	f.  Supervisor character reference letter, dated 25 September 2007.

	g.  Phone numbers of miscellaneous witnesses who are willing to provide telephonic character reference.

	h.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 August 2003.

	i.  U.S. Army Disciplinary Barracks, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, Order 223-2, dated 11 August 2003, Discharge Order.

4.  On 24 April 2008, by electronic mail, the applicant provided the following additional documentary evidence in support of his application:

	a.  Letter of Recommendation, dated 22 April 2008, from the applicant's Work Lead Supervisor.

	b.  Character Reference Letter, dated 22 April 2008.

	c.  Self-authored statement, dated 23 April 2008, describing own current job.

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.  The applicant's records show that he was born on 8 October 1980 and enlisted in the Regular Army with parental consent on 1 April 1998 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63H (Track Vehicle Repairer).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3. 

3.  The applicant's records show he was awarded the Army Service Ribbon.  The applicant's records do not show any significant acts of valor during his military service.

4.  On 7 February 2000, the applicant pled guilty at a General Court-Martial to one specification of committing an indecent act upon a child under 16 years of age, not his wife, on or about 17 July 1999; and two specifications of committing carnal knowledge, on or about 10 July 1999 and on or about between 15 July 1999 and 15 August 1999.  The Court found the applicant guilty of all charges and specifications and sentenced him to reduction to the grade of private/E-1, forfeiture of all pay and allowances, confinement for 66 months, and discharge from the service with a bad conduct discharge.  

5.  On 12 May 2000, the convening authority approved only so much of the sentence as provides for reduction to the grade of private/E-1, forfeiture of all pay and allowances, confinement for sixty (60) months, and a bad conduct discharge, and, except for the part of the sentence extending to a bad conduct discharge, he ordered the sentence executed.  

6.  On 23 July 2002, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence and on 8 April 2003, the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for review.

7.  On 30 May 2003, the U.S. Disciplinary Barracks, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, published General Court-Martial Order Number 32.  This order shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

8.  The applicant was discharged from the Army on 15 August 2003.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations) as a result of Court-Martial.  This form further shows the applicant's character of service as bad conduct and that he completed 1 year, 9 months, and 19 days of creditable military service.  
9.  The applicant submitted miscellaneous character reference letters as follows:

	a.  In his self-authored letter, dated 18 October 2007, the applicant stated that he is currently in Iraq, serving his country in a different capacity and trying to pay the Army back for the wrongdoings and embarrassment he may have caused.  He appealed again to grant him an honorable discharge, for the sake of his children.

	b.  In her statement, dated 20 September 2007, the applicant’s spouse describes some of the challenges and hardships associated with her husband being a registered sex offender.  She further questions the fairness of the laws that label sex offenders for life.  She concludes that her husband acknowledges his mistakes and appeals to the Board to upgrade her husband’s discharge for the sake of their two young children.

	c.  In her statement, dated 28 September 2007, the applicant’s mother requests the charges against her son be expunged from his records.  She further states that her son was young and immature at the time of his offense and has since learned from his mistakes.  He holds a good job and has a family who stood by him through hard times.  She concludes that her son has paid dearly for his mistake and appeals to the Board to upgrade the discharge for the sake of the two young children.

	d.  In her statement, dated 27 September 2007, the applicant’s sister describes some of the challenges she faced in school as a result of her brother’s actions.  She acknowledges that he has made a mistake, but has since turned his life around and is holding a good job and raising a wonderful family.  She concludes that her brother is a rehabilitated person now and appeals to the Board to grant her brother an upgrade.

	e.  In his statement, dated 23 September 2007, a retired Chief of Police states that he is fully aware of the applicant’s past and that in his 17 years as Chief of Police in Helena, Arkansas, he witnessed many individuals who chose to react to these circumstances with continued legal transgression.  However, the Chief states that the applicant is one of the few who has demonstrated that he does not have a criminal mindset, poses no threat to society, and truly deserves a chance to clear his record. 

	f.  In a character reference letter, dated 25 September 2007, the applicant’s supervisor states that the applicant has demonstrated an ability to conform to rules and regulations.

	g.  The applicant submitted a list of individuals and their phone numbers who volunteered themselves as character witnesses on his behalf.  These witnesses requested to be contacted by telephone for their statements, if needed.

	h.  In a second self-authored letter, dated 23 April 2008, the applicant states that he works as a lead mechanic for a private contractor in Iraq in support of the Global War on Terrorism.

	i.  In a statement, dated 22 April 2008, the applicant's work leader in Iraq states that he is aware of the applicant's history; however, he is a very caring and understanding individual who works hard in support of the mission.

	j.  In a character reference letter, dated 22 April 2008, an Army platoon sergeant states that the applicant is a highly dedicated individual who works hard in support of the war effort.

10.  Court-Martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.

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 (emphasis added), 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.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded. 

2.  Records show that the applicant was nearly 19 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  The applicant’s post-service successful employment, stable family, and contributions to the community and society were noted.  Additionally, the character reference letters submitted by family members, friends, and others were also noted.  However, they do not outweigh the offenses committed and are not sufficiently mitigating to grant the requested relief.

4.  The evidence of record shows that the applicant was convicted by a General Court-Martial, which was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a Court-Martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  After a review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


								XXX
      _______________________
      	CHAIRPERSON
      
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.
ABCMR Record of Proceedings (cont)                                         AR20080000968



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20070017753



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508