IN THE CASE OF:
BOARD DATE: 12 January 2010
DOCKET NUMBER: AR20090012249
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 that his dishonorable discharge be upgraded to a fully honorable discharge.
2. The applicant states, in effect, that he is sorry for what he did, that he has done his time and on several occasions has helped the government. He goes on to state that he already has an honorable discharge and he wants to start over, get a good job, be a role model and take care of his family. He continues by stating that he wants the Board to look at his records and to not judge him on what he did but on his character. He also states that no one is perfect and that he was young and going through a lot of stuff and that he made a mistake that he does not believe he should have to pay for forever. He further states that he had lost his father and brother within a month and that he had no support and never really got over it. Additionally, he states that one of his co-workers got his discharge overturned which is indicative that the case had loop holes.
3. The applicant provides no additional documents with his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 7 July 1979 and enlisted in the Texas Army National Guard (TXARNG) on 29 April 1998 for a period of 8 years. He continued to serve until he was honorably discharged from the TXARNG on 31 May 2000 for the purpose of enlisting in the Regular Army.
2. He enlisted in the Regular Army on 1 June 2000 for assignment to Europe. He was transferred to Hohenfels, Germany for duty as a wheeled vehicle mechanic. He reenlisted on 5 August 2002 for a period of 2 years.
3. On 22 December 2003, he was convicted by a general court-martial of two specifications of failure to go to his place of duty, two specifications of disobeying a lawful command from a superior commissioned officer, one specification of disobeying a lawful order from a superior noncommissioned officer (NCO), four specifications of unlawfully grabbing two civilian females by the throat and striking them, two specifications of communicating a threat, one specification of having sexual intercourse with a civilian female who was a married woman, not his wife, and one specification of wrongfully committing an indecent act with a civilian female by engaging in sexual activity in front of another Soldier. He was sentenced to confinement for 10 years, reduction to the pay grade of E-1, a forfeiture of all pay and allowances and a dishonorable discharge.
4. The convening authority approved only so much of the sentence as pertained to reduction to the pay grade of E-1, a forfeiture of all pay and allowances, confinement for 54 months and a dishonorable discharge.
5. On 8 May 2009, the U.S. Army Court of Criminal Appeals affirmed the findings and sentence approved by the convening authority, and the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He had served 5 years, 9 months, and 9 days of total active service and he had approximately 1,154 days of lost time due to being in confinement.
6. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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. 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.
2. The type of discharge directed and the reasons appear to be appropriate considering the available facts of the case.
3. The applicants contentions have been noted. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses. Accordingly, his service does not rise to the level of a discharge under honorable conditions.
4. 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.
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