IN THE CASE OF:	  

		BOARD DATE:	       24 September 2008

		DOCKET NUMBER:  AR20080005994 


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, in effect, that his discharge be upgraded.  

2.  The applicant states, in effect, that since leaving the military he has done everything he could to remain, in some way, a part of the Armed Forces.  He has worked as technical support, communication technician, and systems administrator for some of the major military contractors.  He has gone back to school and earned an associate degree, two bachelor degrees, and will soon complete a master’s degree.  He has been a single parent since 1993.  His son will attend college next year.  The applicant states that he has never been arrested and has never had anything more than a traffic ticket.  He deeply regrets not being able to continue to serve his country in the military.  He is proud of every second of his service, and would like nothing better than to have his discharge upgraded to reflect that he served honorably.  His mistakes are far behind him.  He is hopeful that the Board can see that even though people do make mistakes they can change for the better and become a productive member of society.  He thinks he has proven, by his actions, by the life he lives, and by the people he comes in contact with on a daily basis, that he is an honorable man. 

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).




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 military records are not available to the Board for review.    However, the applicant’s DD Form 214 and Record of Trial are available and are sufficient for the Board to conduct a fair and impartial review of this case.  

3.  On 24 April 1987, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 31F (Network Switching Systems Operator/Maintainer).
 
4.  On 11 May 1998, charges were preferred under the Uniform Code of Military Justice (UCMJ).   Charge I was for violation of Article 128 (one specification) for unlawfully striking a child, under 16 years of age, on the arm and back with a belt.  Charge II was for violation of Article 134 (one specification) for willfully, wrongfully, surreptitiously and indecently videotaping a female child under 
16 years of age, not his wife, while she began to disrobe, to take a shower.  Charge III was for violation of Article 134 (one specification) for wrongfully and unlawfully making, under lawful oath, a false statement.

5.  On 4 August 1998, before a Military Judge at a General Court-Martial, the applicant pled not guilty to all charges and specifications.  

6.  On 6 August 1998, the court found him not guilty of Charge I and its specification, and guilty of Charge II and Charge III and their specifications.  The court sentenced him to reduction to pay grade E-1, and a bad conduct discharge.

7.  On 12 November 1998, the Staff Judge Advocate, in a written review for the convening authority, summarized the charges, specifications, pleas, findings, sentence, and the applicant’s service record.  The Staff Judge Advocate recommended approval of the sentence. 

8.  On 8 January 1999, the convening authority approved the sentence, and except for that part extending to a bad conduct discharge, ordered it executed.

9.  On 27 December 1999, the United States Army Court of Criminal Appeals reviewed the entire record, and held that the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, it affirmed the finding of guilty and the sentence as approved.

10.  General Court-Martial Order Number 16, Headquarters, V Corps, dated 
30 July 2002, provided that the sentence to reduction to pay grade E-1 and a bad conduct discharge, adjudged on 6 August 1998, had been affirmed.  Article 71(c), UCMJ, having been complied with, the bad conduct discharge was to be executed.

11.  The applicant's DD Form 214 shows that he was discharged on 
29 September 1999, under the provisions of Army Regulation 635-200, paragraph 12-14, and received a bad conduct characterization of service.  

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 characterized the misconduct for which the applicant was convicted.

2.  The applicant’s reported good post-service conduct is noted.  However, it does not sufficiently mitigate his acts of indiscipline during his military service.

3.  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.

4.  In view of the above, the applicant's request should be denied.  









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
      
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)                                         AR20080005994



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ABCMR Record of Proceedings (cont)                                         AR20080005994



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