RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 MAY 2008
	DOCKET NUMBER:  AR20080000390 


	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. Dean L. Turnbull

Analyst

      The following members, a quorum, were present:


Mr. Patrick H. McGann Jr

Chairperson

Mr. Michael J. Flynn

Member

Ms. Jeanette R. McCants

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 a general or an honorable discharge, so that he may receive his retirement pay at age 60.

2.  The applicant states he would like to have his discharge upgraded because he was not convicted of the most serious charge levied against him.  He would like for his court-martial proceedings to be stricken entirely from his Army records.  Also, he should have been granted retirement from the Reserve Component, because Army Regulation 635-200 (Personnel Separation) does not state that an Active Guard Reserve (AGR) Soldier can retire from the Reserve Component in lieu of trial by court-martial.

3.  He continues that he deserves an upgrade to his discharge, because his discharge was inappropriate for the Uniform Code of Military Justice (UCMJ) violation.  He had diligently served his country for over 26 years on active and reserve duty and he cannot see himself or anyone else throwing away an excellent career.  The adultery charge against him has jeopardized his reserve retirement and any hope for veterans benefits.  An Article 15 would have been an appropriate UCMJ action for the charge, but instead, one count of adultery ended his career.

4.  He states the investigating officer clearly stated there wasn't enough evidence for a general court-martial trial, but counsel disregarded the recommendation.  He has two honorable discharges, over 23 years of service as a model Soldier for his peers and subordinates, and he received awards and decorations for his outstanding performance.  The punishment was unfair and, therefore, consideration for an upgraded discharge would be just and fair.

5.  The applicant provides a copy of DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) with attachments.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he enlisted in the Regular Army on 2 July 1981.  He completed the necessary training and was awarded the military occupational specialty (MOS) 16S (Man Portable Air Defense System Crewman).  He was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement), St. Louis, Missouri on 2 July 1984.  He completed 3 years and 1 day of Net Active Service This Period.
2.  He entered active duty as a Reservist on 23 February 1997 in the grade of
E-5.  He completed advanced individual training and was awarded the MOS 75H (Personnel Services Specialist).  He was honorably released from active duty and transferred to the USAR Control Group (Individual Mobilization Augmentee), St. Louis, Missouri on 11 November 1997.  He completed 8 months and 19 days Net Active Service This Period.

3.  On 11 January 1998, the applicant entered active duty in the AGR program.

4.  On 25 August 2004, the applicant was convicted by a general court-martial of one specification of adultery.  His punishment was reduction to pay grade E-1, forfeiture of all pay and allowances, and a bad conduct discharge from the service.  The applicant requested voluntary excess leave and it was approved in the best interest of the service, on 15 October 2004.

5.  A memorandum from U.S. Army Trial Defense Service, Region IX, Southern Iraq Branch Office, dated 31 March 2005 and signed by the applicant's Trial Defense Counsel, was submitted to the Commanding General requesting that the findings of guilty on the charge of adultery be disapproved.  Counsel requested, in the alternative, any portion of the sentence which provided for reduction below the grade E-4 and a bad conduct discharge be disapproved.  The Trial Defense Counsel argued that the conviction on the charge of adultery was legally insufficient, because the government must prove more than the act of intercourse involving a married person in order to convict someone.

6.  The Trial Defense Counsel explained that in accordance with the Manual for Courts-Martial (2002 ed.), the adulterous conduct is punishable only when it is directly prejudicial (as opposed to indirectly or remotely prejudicial) to good order and discipline, or when it is service discrediting.  The bad conduct discharge is excessive punishment given the facts of the case and when compared to the many other cases involving adultery in the military.

7.  The applicant's military personnel record contains a notification of eligibility for retired pay at age 60 (20-year Letter) dated 30 June 2005.

8.  The U.S. Army Combined Arms Center and Fort Leavenworth General Court-Martial Order Number 4, dated 4 June 2007, shows that The United States Army Court of Criminal Appeals affirmed the court-martial's findings and sentence.  On 4 June 2007, Article 71(c) having been complied with, the convening authority ordered the bad conduct discharge to be executed.

9.  The applicant was discharged from the Army under the provisions of Army Regulation 635-200, chapter 3 as a result of court-martial, on 4 June 2007.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows that his characterization of service was bad conduct.  He had completed 9 years, 4 months, and 24 days of Net Active Service This Period.

10.  In the personal statement submitted by the applicant, he claims he was not convicted of the most serious charge levied against him and he is requesting an upgrade to his discharge based on Army Regulation 135-178 (Enlisted Administration Separations), paragraph 1-11.  He claims he was not given the opportunity to retire or to be honorably discharged from the U.S. Army Reserve as provided for in Army Regulation 635-200, chapter 10.  Also, the three character statements he submitted describes the applicant as a hard working person that goes the extra mile, a team player, and an outstanding noncommissioned officer, who has been through some stressful times since his court-martial.

11.  Army Regulation 635-200, in effect, at the time sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishment for an individual convicted by a general court-martial in violation of Article 134 for adultery as a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for a period not to exceed  
1 year.



14.  The Manual for Courts-Martial Article 134(c) states that acts in violation of local civil law may be punished if they are of a nature to bring discredit upon the armed forces.  Included within the conduct which may be found to be within the prescription of this clause is adultery.

15.  Court-martial convictions stand as adjudged or as 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 (ABCMR) 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.

16.  In accordance with Army Regulation 135-18 (Active Guard Reserve Program), paragraph 5-1, USAR Soldiers released from active duty, while serving in the AGR program UP of 10 USC are subject to separation under the provisions of AR 600–8–24 (officers) or AR 635–200 (enlisted).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to an honorable discharge, so that he may receive his retirement pay at age  
60.  He states he was not convicted of the most serious charge levied against him, and his discharge was inappropriate for the UCMJ violation.  Also, the Trial Defense Counsel contends that the bad conduct discharge is excessive punishment given the facts of the case.

2.  However, the Manual for Courts-Martial, Table of Maximum Punishments shows that the maximum punishment for an individual convicted by a general court-martial in violation of Article 134 for adultery is a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for a period not to exceed 1 year. 

3.  The applicant's act of adultery brought discredit upon himself and the Armed Forces.  The Manual for Courts-Martial Article 134(c) states that "acts in violation of local civil law may be punished if they are of a nature to bring discredit upon the armed forces.  Included within the conduct which may be found to be within the prescription of this clause is adultery."


4.  Army Regulation 135-178, paragraph 1-11 does not apply to the applicant since he was serving as an AGR Soldier on active duty at the time of the incident.  In reference to Army Regulation 635-200, chapter 10, there is no evidence that the applicant submitted a request for discharge in lieu of trial by court-martial or, if he did request a discharge under this provision, the commander exercising general court-martial authority approved the request.

5.  It must be presumed that the applicant's entire military record was considered by his court-martial during his trial.  As such, the bad conduct discharge was the appropriate characterization of service.

6.  His personal statement and character statements that were submitted were considered.  However, those statements contain no matters of mitigation which would warrant upgrading a properly issued discharge.

7.  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 this requirement.  Therefore, he is not entitled to correction of his records to show a general discharge or an honorable discharge.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________X_____________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080000390



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