IN THE CASE OF:	  

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090010280 


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 bad conduct discharge to honorable.  The applicant also requests to personally appear before the Board.

2.  The applicant states that the court-martial involved domestic issues concerning his contentious divorce from his wife.  He contends that his punishment was too draconian.  He served in the military for more than 7 years without any problems.  When his wife approached him he called her girlfriend to come get her.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his petition for a grant of review by the U.S. Court of Appeals in support of his application.

CONSIDERATION OF EVIDENCE:

1.  On 17 March 2000, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 92A (Automated Logistical Specialist).  He was subsequently assigned to the 69th Signal Company, 504th Signal Battalion, Fort Huachuca, Arizona.

2.  On 9 July 2003, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ).  Charge I was for violation of Article 90 for willfully disobeying a lawful command to not make contact with his wife; charge II was for violation of Article 120 for rape; charge III was for violation of Article 121 for stealing money and military property of a value of more than $500.00; charge IV was for violation of Article 134 for willfully and wrongfully confining and holding a person not a minor against her will.  An additional charge I was preferred on 6 August 2003 for two specifications for violation of Article 112a for willfully disobeying a lawful command to have no contact with his wife.

3.  On 27 January 2004 before a military judge at a general court-martial, the applicant requested to be tried by the members and pled not guilty to all charges and specifications.

4.  On 28 January 2004, the members found the applicant guilty of charge I, specification 1, for willfully disobeying a superior commissioned officer and of the additional charge 1, specifications 1 and 2, for willfully disobeying a superior commissioned officer.  The additional charge I was mislabeled as Article 112(c), wrongful use of a controlled substance.

5.  On 29 January 2004, the court-martial sentenced the applicant to reduction to the grade of E-1, confinement for 1 year, and a bad conduct discharge.  He was also credited with 255 days of confinement against the sentence to confinement.

6.  On 21 September 2004, the Staff Judge Advocate (SJA) summarized the charges, specifications, pleas, findings, and sentence in a written review for the convening authority.  The SJA also summarized the applicant's military service and general background, to include his awards, lack of any previous nonjudicial punishment or court-martial convictions, education, and dependent children.  The SJA recommended approval of only so much of the sentence as provided for reduction to the grade of E-1, confinement for 1 year, and a bad conduct discharge.  The SJA further advised that the applicant must be credited with 225 days of confinement against the sentence to confinement.

7.  On 5 October 2004, the applicant requested that the convening authority disapprove the results/sentence of the court-martial.  The defense counsel argued that the applicant was convicted of breaking his commander's orders and contacting his wife three times.  For these offenses, he should have received nonjudicial punishment.  He did not deserve a Federal conviction and a criminal record for these infractions.  The defense counsel also argued that the 244-day delay to serve the record of trial on the defense constituted legal error and denied the applicant the opportunity to ask the convening authority to disapprove some of the sentence prior to his release from confinement.

8.  On 21 October 2004, the SJA further advised the convening authority that he had carefully considered the defense allegations of legal error and was of the opinion that the assertions were without merit.  However, the SJA recommended a reduction of the sentence to confinement by 1 month as an overabundance of caution to correct any perception of unfairness.

9.  Accordingly, the convening authority approved only so much of the sentence as provided for reduction to the grade of E-1, confinement for 11 months, and ordered the sentence executed except for that part extending to a bad conduct discharge.  The applicant was credited with 255 days of confinement against the sentence to confinement.

10.  On 16 November 2006, the U.S. Army Court of Criminal Appeals considered the entire record and held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.  Accordingly, the finding of guilty and the sentence were affirmed.  The court corrected the court-martial order to reflect the additional charge I as an offense of Article 90.

11.  On 9 January 2008, the U.S. Court of Appeals for the Armed Forces affirmed the decision of the U.S. Army Court of Criminal Appeals.

12.  General Court-Martial Order Number 41, U.S. Army Armor Center and Fort Knox, dated 28 February 2008, provided that the sentence to a reduction to pay grade E-1, confinement for 11 months, and a bad conduct discharge adjudged on 29 January 2004, as promulgated in General Court-Martial Order Number 9, Headquarters, U.S. Army Intelligence Center and Fort Huachuca, dated 21 October 2004, as corrected by Notice of Court-Martial Order Correction, U.S. Army Court of Criminal Appeals, dated 16 November 2006, had been affirmed.  Article 71(c), UCMJ, having been complied with, the bad conduct discharge was ordered executed.

13.  The applicant's DD Form 214 shows he was discharged on 11 July 2008 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, section IV, and received a bad conduct characterization of service.

14.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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.

16.  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 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.

17.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  The fact that the applicant was convicted of only a portion of the charges does not change the gravity of the offenses.  The applicant's 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.

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)                                         AR20090010280



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010280



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1