IN THE CASE OF:	  

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090006520 


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 under other than honorable conditions be upgraded.

2.  The applicant states, in effect, that when he was at home on leave from Korea he bought a laptop computer and when he returned to Korea he allowed other Soldiers access to the computer.  He states when he completed his tour in Korea (in July 2003) he returned to the States and sold his laptop at a pawn shop in Albany, OR.  He states approximately 1 year later he was informed by the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) that child pornography consisting of 10 pictures were found on the laptop he sold in Albany.  He states he told the CID that it was his laptop but he did not know the pictures were on it and that he would never have sold the laptop if he had known the pictures were on the laptop.  He states he was not the only person using the laptop in Korea and that he tried to provide names of personnel who had access to the laptop.  He states that he was arrested by a county sheriff's officer and sent back to Albany to face charges.  He states his lawyer told him to plead no contest since he could not produce any witnesses.  He states 9 counts were dropped and instead of a felony charge he was charged with a class C misdemeanor.  He states he never had a chance to explain himself and he never had a chance to stay in the Army.  He states no one would even look at the facts, listen to him, or give him the benefit of the doubt.  He states that at the time of his discharge he was not even demoted.


3.  The applicant provides a letter, dated 30 March 2009, from his mother in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the Regular Army on 16 January 2002 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

2.  The applicant completed a 12 month tour of duty in Korea in June 2003.  
On 7 July 2003, he was assigned to Company B, 1st Battalion, 5th Infantry at Fort Lewis, WA.

3.  A CID Report of Investigation, dated 8 July 2004, is included in the applicant’s official military personnel file.  The Investigative Summary states the applicant's laptop computer was found to contain several movie files containing names suggesting the contents were child pornography.  The Summary states that upon closer inspection the movie files were found to depict adult males engaging in sexual acts with pre-teenage females, sexual acts involving only adults, and other acts involving animals.  The Summary states that the investigation established probable cause to believe the applicant committed the offense of downloading and possessing child pornography when he knowingly downloaded images of child pornography and stored them on his privately owned computer.  This established the applicant to be in violation of United States Code (USC) 18 USC 2252, Certain activities relating to material involving the sexual exploitation of minors, and Article 134 of the Uniform Code of Military Justice:  Downloading and Possessing Child Pornography.

4.  On 5 February 2005, the applicant was convicted in the State of Oregon, Linn County Circuit Court of “Attempt C/Felony Encouraging Child Sex Abuse” on or about 1 January 2003.  He was sentenced to 24 months bench probation and he was required to pay fees and assessments to the Court.

5.  On 17 February 2005, the applicant was evaluated by a clinical psychologist.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in judicial or administrative proceedings.



6.  The applicant's commander notified him that he was initiating action to discharge him under the provisions of Section II, Chapter 14 of Army Regulation 635-200 due to conviction by a civil court for a sex offense.  The commander notified the applicant he was recommending that he receive a discharge under other than honorable conditions.   

7.  The commander advised the applicant of his right to have his case considered by a board officers, to appear in person before a board officers, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge and request his case be presented before a board of officers.  The applicant acknowledged receipt of this notification on 2 March 2005.

8.  On 9 March 2005, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 14 of Army Regulation 635-200 for misconduct.  The applicant waived consideration by a board of officers and a personal appearance before a board of officers.  The applicant stated that he was not submitting statements in his own behalf and that he requested representation by Captain O'B----.  

9.  The applicant also acknowledged that, as the result of the issuance of an under other than honorable conditions discharge he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

10.  The applicant's commander recommended that the applicant be separated from the Army prior to the expiration of his current term of service.  The commander's specific reason for this recommendation was the applicant’s conviction by a civil court for a sex offense.  

11.  The applicant's intermediate commanders recommended that he be discharged and that his service be characterized as under other than honorable conditions.

12.  The separation authority's approval action is not contained in the applicant’s official military personnel file.  

13.  On 30 March 2005, the applicant was discharged under the provisions of Chapter 14 of Army Regulation 635-200 by reason of misconduct.  He had completed 3 years, 2 months, and 15 days of active service that was characterized as under other than honorable conditions.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a specialist/pay grade E-4.

14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 22 December 2006, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

15.  The applicant submitted a letter, dated 30 March 2009, from his mother wherein she stated that she did not believe her son did the things he was accused of doing.  She states he has held a job since his discharge and that he is working at getting his life back to normal.

16.  Article 134 of the UCMJ makes punishable acts in three categories of offenses not specifically covered in any other article of the code. These are referred to as “clauses 1, 2, and 3” of Article 134.  Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces.  Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces.  Clause 3 offenses involve noncapital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act.

17.  Title 18 United States Code, Section 2252 (certain activities relating to material involving the sexual exploitation of minors) states, in effect, that any person who knowingly possesses, or knowingly accesses with intent to view, one or more books, magazines, periodical, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct shall be fined or imprisoned for not less than 5 years and not more than 20 years or both.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation establishes policy and prescribes procedures for conditions that subject a Soldier to discharge due to a conviction by a civil court.  A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty if a punitive discharge is authorized for the same or a closely related offense under the Manual for Courts-Martial or the sentence by civil authorities includes confinement for 6 months or more without regard to suspension or probation.  Initiation of separation action is not mandatory.  The immediate commander must also consider whether the specific circumstances of the offense warrant separation.  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge.  An honorable discharge may be approved by the commander exercising general court-martial jurisdiction or higher authority.

19.  Paragraph 1-13 (Reduction in grade) of Army Regulation 635-200 states that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

21.  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.  

22.  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 applicant contends that his discharge should be upgraded because he never got the chance to explain himself or a chance to stay in the Army.  He contends that he was not demoted when he was discharged.

2.  The applicant was improperly discharged in pay grade of E-4.  The regulation is clear in that the separation authority will direct an immediate reduction of a Soldier to the lowest grade when the Soldier receives an under other than honorable conditions discharge.  However, it is the policy of this Board not to correct a record to reflect a change that will make the individual concerned worse off than before applying to the Board.  In view of this, the fact that the applicant was not reduced prior to discharge cannot be used as a mitigating factor when considering a properly-issued discharge.

3.  The applicant contends he never had the opportunity to explain himself or to express his desire to remain in the Army.  However, when he was notified that his commander was initiating action to discharge him, he had the right to request a board of officers and to appear before that board with counsel.  This would have provided him the opportunity to explain his actions and his desire to remain in the Army.  However, he waived his right to have his case considered by a board of officers.  Therefore, the evidence does not support his contention.

4.  It is clear that due to the seriousness of the charge for which the applicant was convicted, he would have been subject to a punitive discharge and a possible prison term of 5 to 20 years if charged for violation of a federal statute or Article 134 under the UCMJ.  Therefore, it was appropriate to process the applicant for discharge under the provisions of Chapter 14, Army Regulation 
635-200.

5.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

6.  The applicant was convicted in a civil court of an offense that was of sufficient severity to subject him to a punitive discharge from the military service.  Therefore, he is not entitled to an upgrade of his under other than honorable conditions discharge to an honorable or a general discharge.

7.  The letter from the applicant's mother was also considered.  However, it was insufficient evidence to change a properly issued discharge.

8.  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 that 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)                                         AR20090006520



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ABCMR Record of Proceedings (cont)                                         AR20090006520



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