IN THE CASE OF:	  

		BOARD DATE:	        25 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014349 


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 he disagrees with the decision to discharge him and that it has had a severe negative impact on his employment.

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

	a.  self-authored letter, dated 1 July 2008;

	b.  electronic mail (email) exchange, dated 10 and 11 April 2008, with a general officer;

	c.  character reference letter, dated 28 July 2008;

	d.  applicant’s resume; and

	e.  extracts from local newspapers pertaining to the applicant’s restaurant business, job fairs, and religious singing.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 16 August 1989.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 92G (Food Service Specialist).  His records also show he executed a series of extensions and/or reenlistments in the Regular Army and was promoted to staff sergeant on 1 July 1995 and sergeant first class on 1 December 1999.

2.  The applicant’s records also show he completed several overseas tours including tours in Germany from January 1990 to December 1990 and May 1991 to August 1993, and in Korea from May 1996 to May 1997 and February 2001 to April 2002.  He also served in Southwest Asia in support of Operations Desert Shield/Storm from December 1990 to May 1991.

3.  The applicant's records show he was awarded the Army Commendation Medal (3rd Award), the Army Achievement Medal (3rd Award), the Army Good Conduct Medal (3rd Award), the National Defense Service Medal, the "Korean Service Medal," the Armed Forces Expeditionary Medal, the Southwest Asia Service Medal with three bronze service stars, the Noncommissioned Officer Professional Development Ribbon with numeral 2, the Army Service Ribbon, the Overseas Service Ribbon, the Kuwait Liberation Medal (Saudi Arabia), the Kuwait Liberation Medal (Kuwait), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 12 April 2002, the applicant pled not guilty at a general court-martial to one specification of committing an indecent assault upon a lower enlisted Soldier, a person not his wife, by kissing her on her neck, attempting to kiss her on her face, grabbing her bxxxxxx with his hands, rubbing his pelvis against her stomach, trying to unzip her pants, and forcing her to lick his nxxxxx, with the intent to gratify his lust and sexual desire on or about 21 December 2001.  The Court found the applicant guilty of the charge and specification and sentenced him be discharged with a bad conduct discharge.  The convening authority approved the sentence on 10 December 2002 and, except for the part of the sentence extending to a bad conduct discharge, he ordered it executed.

5.  On an unknown date, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

6.  On 7 September 2005, the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for a review.

7.  Headquarters, 2d Infantry Division, General Court-Martial Order Number 31, dated 8 December 2005, shows that the sentence to a bad conduct discharge adjudged on 12 April 2002 as promulgated in General Court-Martial Order Number 38, dated 10 December 2002, had been finally affirmed and that the bad conduct discharge would be executed.

8.  The applicant was discharged from the Army on 16 August 2006.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows that 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 17 years and 1 day of creditable military service.

9.  The applicant submitted a self-authored statement, a character reference letter, and an email message from a general officer as follows:

	a.  In his self-authored letter, dated 1 July 2008, the applicant requests his discharge be upgraded.  He brings to the Board’s attention the fact that he worked for a general officer and that when he communicated with him, the general officer instructed his staff to assist the applicant in obtaining his DD Form 214.  He also brings up the fact that he is submitting a character reference statement from a senior noncommissioned officer who works at the Office of the Secretary of Defense.  He further states that he had demonstrated his ability to be an effective member in the community as evidenced by his successful restaurant, participation in the Department of Social Services job fair, and planning and executing a gospel singing competition.  He concludes that an upgrade would allow him to become more competitive in the job market and allow him to seek management opportunities.

	b.  In his character reference letter, dated 28 July 2008, a senior mess sergeant states that he has known the applicant for many years and is impressed with his dedication, proficiency, efficiency, and competence.  The mess sergeant also states that he feels the applicant’s exceptional character deserves an upgrade of his discharge.

	c.  In an email exchange, dated 10 and 11 April 2005, with a general officer, the general officer instructs a staff member to assist the applicant.

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 3-7b, 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.

12.  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.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant’s post-service successful employment, singing career, and contributions to the community were noted.  Additionally, the character reference letter submitted by the applicant was also noted.  However, they are not sufficiently mitigating in granting the requested relief.  The applicant was a senior noncommissioned officer and a leader of Soldiers who violated a basic tenet of leadership by using his rank and/or position to attain personal pleasure, profit, or gratification.  He may have left a scar on a younger and junior comrade-in-arms that may never heal.

3.  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.

4.  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

___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.



      _________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)                                         AR20080014349



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ABCMR Record of Proceedings (cont)                                         AR20080014349



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