IN THE CASE OF:	  

		BOARD DATE:	        30 September 2008

		DOCKET NUMBER:  AR20080010840 


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 dishonorable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that the Army provided him with military counsel who recommended that he plead guilty to all charges.  He contends that this resulted in much more severe results than what was explained to him.  He asks the Board to consider his service record and the current rules for his charge.  He also states that he was not aware that what he accessed on a Department of Defense (DOD) computer was illegal in any way and that it was prior to current DOD computer access limitations and mandates. 

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 3 May 1989 and trained as a chemical operations specialist.  He remained on active duty through continuous reenlistments.  

2.  On 7 June 2000, the applicant was convicted by a general court-martial of disobeying a superior commissioned officer (two specifications), violating a lawful general regulation (distributing, receiving, and possessing child pornography, soliciting others to distribute and receive child pornography) (four specifications), false swearing, and soliciting another to rape a child.  He was sentenced to reduction to E-1, a forfeiture of all pay and allowances, to be confined for 
10 years, and to be discharged from the service with a dishonorable discharge.  The convening authority approved the sentence.

3.  On 22 January 2004, the U.S. Army Court of Military Review modified the finding of guilty of specification 5 of charge IV (soliciting another to rape a child) to find that the applicant wrongfully solicited or advised another to commit the offense of carnal knowledge with a nine year old child.  The remaining findings of guilty were affirmed.  The sentence was reassessed and the Army Court affirmed only so much of the sentence as provided for a dishonorable discharge, confinement for 114 months, a forfeiture of all pay and allowances, and reduction to E-1.  

4.  On 30 September 2005, the United States Court of Appeals for the Armed Forces affirmed the sentence.  The Court found the applicant’s guilty plea of violating the Child Pornography Prevention Act improvident under general article 6, clause 3.    

5.  The convening authority ordered the dishonorable discharge executed on 
9 December 2005.

6.  Accordingly, the applicant was discharged with a dishonorable discharge on 
1 February 2006 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served 10 years, 10 months, and 7 days of total active service with approximately 2,151 days of lost time due to being in confinement. 

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

8.  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.

9.  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.

10.  The 1996 Child Pornography Prevention Act extended the existing federal criminal laws against child pornography to the new computer media.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he received a harsher sentence than what was explained to him by his military counsel relates to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his general court-martial and appellate proceedings.

2.  The evidence of record does not support the applicant’s contentions that he was not aware that what he accessed on a DOD computer was illegal in any way and that it was prior to current DOD computer access limitations and mandates, the 1996 Child Pornography Prevention Act extended the existing federal criminal laws against child pornography to the computer media.  The applicant was court-martialed for these offenses in 2000.  

3.  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 discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  The applicant's record of service included, in addition to the general court-martial that resulted in his dishonorable discharge, approximately 2,151 days of lost time.  He was discharged with a dishonorable discharge for disobeying a superior commissioned officer (two specifications), violating a lawful general regulation (distributing, receiving, and possess child pornography, soliciting others to distribute and receive child pornography) (four specifications), false swearing, and soliciting/advising another to wrongfully commit the offense of carnal knowledge with a nine year old.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  ___XX_____  __XX______  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.


      _______XXXX _   _______   ___
               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)                                         AR20080010840



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ABCMR Record of Proceedings (cont)                                         AR20080010840



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