IN THE CASE OF:	  

		BOARD DATE:	  29 September 2009

		DOCKET NUMBER:  AR20090005952 


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 upgrade of his dishonorable discharge to an honorable discharge.

2.  The applicant states, in effect, that after receiving his DD Form 214 (Certificate of Release or Discharge from Active Duty), he is requesting that his discharge be upgraded.

3.  The applicant provides a copy of his DD Form 214 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army (RA) and he entered active duty on 29 December 1999.    

2.  The applicant’s record contains a copy of Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, General Court-Martial (GCM) Order Number 163, dated 22 June 2006, which documents the following charges, pleas, and findings:

	a.  Charge I, Article 102, Uniform Code of Military Justice (UCMJ), with two specifications:  
	

		(1)  Specification I:  On divers occasions between or about 2 August 2004 and on or about 25 February 2005, rape a person who had not attained the age of 12 years.  Plea:  Not Guilty.  Finding:  Dismissed.  
		
   (2)  Specification II:  On or about 26 February 2005, rape a person who had not attained the age of 12 years.  Plea:  Not Guilty.  Finding:  Dismissed.

	b.  Charge II, Article 125, UCMJ, with three specifications:  

		(1)  Specification I:  At or near … on divers occasions between on or about 20 December 2002 and on or about 1 April 2003, commit sodomy with a child under the age of 12 by force and without consent of said child.  Plea:  Guilty.  Finding:  Guilty.

		(2)  Specification II:  At or near … on divers occasions between on or about 2 April 2004 and on or about 1 August 2004, commit sodomy with a child under the age of 12 by force and without consent of said child.  Plea:  Guilty.  Finding:  Guilty.

		(3)  Specification III:  At or near … on divers occasions between on or about 2 August 2004 and on or about 1 March 2005, commit sodomy with a child under the age of 12 by force and without consent of said child.  Plea:  Guilty.  Finding:  Guilty.

	c.  Charge III, Article 134, UCMJ:

		The Specification:  On or about 26 February 2005, commit an indecent act upon the body of a female under 16 years of age, not the wife of the accused, by using his hand to rub lotion on her vaginal area with the intent to gratify the lust and sexual desires of the accused.  Plea:  Guilty.  Finding:  Guilty.
		
3.  On 8 March 2006, sentence was adjudged.  The applicant was sentenced to be reduced to private (PV1)/E-1, forfeit all pay and allowances, confined for a period of 23 years, and to be dishonorably discharged from the U.S. Army.  However, only so much of the sentence extending to the grade of PV1/E-1, confinement for 7 years, and to be dishonorably discharged from the service would be executed.  The automatic and adjudged forfeiture of all pay and allowances were deferred effective 23 March 2006 and the deferment was terminated on 22 June 2006.  The automatic forfeitures required under Article 58b, UCMJ, were waived effective 22 June 2006, for a period of 6 months.


4.  The applicant’s record contains a copy of U.S. Army Field Artillery Center, Fort Sill, OK GCM Order Number 39, dated 1 February 2007.  This order shows, in pertinent part, that the applicant's sentence was approved and the dishonorable discharge was ordered duly executed.

5.  The applicant's DD Form 214 shows that he was discharged on 6 November 2007, under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), by reason of court-martial, with a reentry eligibility (RE) code of 4.  This form further lists the applicant's character of service as dishonorable.

6.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (ABCMR) is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  Paragraph 3-10 contains guidance on issuing a dishonorable discharge.  It states, in pertinent part, that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a GCM.  The appellate review must be completed and the affirmed sentence ordered duly executed.

8.  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.

9.  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 evidence of record shows the applicant was convicted by a GCM and he received a dishonorable discharge.  Trial by a GCM was warranted by the serious nature of the offenses for which the applicant was charged and convicted.  The sentence is commensurate with the misconduct for which the applicant was convicted.  The applicant’s service was not sufficiently meritorious to warrant granting clemency. 

2.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's record of service, the seriousness of the offenses for which he was convicted and which occurred over a number of years, and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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 this requirement.  

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)                                         AR20090005952



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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