IN THE CASE OF:	

		BOARD DATE:	3 December 2009  

		DOCKET NUMBER:  AR20090010473 


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 dismissal be upgraded to a general discharge.

2.  The applicant does not provide an explanation. 

3.  The applicant provides a character reference letter, a copy of his general court-martial order, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant entered active duty on 18 May 1997 and he served as a transportation officer.  He was promoted to captain on 1 December 2000. 

3.  On 11 August 2003, in accordance with his pleas, the applicant was convicted by a general court-martial of disobeying a lawful command (to cease any contact or communications with a private), failing to obey a lawful general regulation by engaging in sexual intercourse with a private (a trainee in his company), conduct unbecoming an officer and gentleman, and false swearing.  He was sentenced to be dismissed from the service and to be confined for 30 days.  He was placed on excess leave on 4 September 2003.  On 6 November 2003, the convening authority approved the sentence. 

4.  On 10 December 2004, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 28 October 2005, the Assistant Secretary of the Army (Financial Management and Comptroller) ordered the dismissal to be executed.  

5.  The applicant was dismissed on 12 December 2005.  He completed 8 years, 6 months, and 3 days of creditable active service.  His DD Form 214 shows his character of service as under other than honorable conditions.  His DD Form 214 shows that he was discharged under the provisions of Army Regulation 
600-8-24, paragraph 5-17, for court-martial conviction.   

6.  The applicant provided a character reference letter from the principal of Dekalb Alternative School in Stone Mountain, Georgia.  He attests that the applicant is the most loyal, energetic, and committed teacher he has known in his tenure at the school.  He goes on to state that the applicant possesses the innate ability to motivate his students and to support the staff wholeheartedly, that he is the epitome of dedication, and that he is a self-starter.  He indicates that he understands the applicant's disposition with the Army and he asks that the applicant receive favorable consideration.  He contends that a discharge upgrade would put the applicant in a better position to achieve his goals and soar in the education arena.     

7.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of officer personnel.  Paragraph 5-17 of this regulation states that an officer convicted and sentenced to a dismissal as a result of general court-martial proceedings will be processed pending appellate review of such proceedings. 

8.  Army Regulation 600-8-24, paragraph 1-22b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to an officer 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, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR 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.

DISCUSSION AND CONCLUSIONS:

1.  The character reference letter submitted on behalf of the applicant fails to show that his discharge was unjust and should be upgraded.

2.  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.

3.  Evidence of record shows the applicant, a captain who is expected to act with the highest integrity at all times, was dismissed from the service for false swearing and engaging in sexual intercourse with a private and related offenses.  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

___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)                                         AR20090010473



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ABCMR Record of Proceedings (cont)                                         AR20090010473



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