IN THE CASE OF:	

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090015646 


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 honorable.

2.  The applicant states that there was a lot of evidence that his lawyers were not allowed to get under the Freedom of Information Act, for example, phone records and electronic mail from the accusers.  He contends that there was also a delay in his post-trial issues (the record of trial was late), that he missed four parole board hearings, and that he was convicted of one crime and released on a totally different issue.  He points out that the parties involved did not report until almost 3-4 years later, that there was no physical evidence because he did not commit a crime, and that he never received volumes of his record of trial.  He also points out that he did not commit the acts of charge I of Article 93 (maltreatment); however, he does admit to losing his tact and military bearing once when he was depressed.

3.  The applicant states that he would like his discharge upgraded so he can enlist.  He loves the Army and has never done anything to show otherwise.  He is a very motivated individual who knows how to be a member of a team.  He never felt anger for anything that has happened to him.  He was raised as a Jehovah's Witness and he put his religious requirements on hold to serve in the military.  He claims that he used his moral ethics and upbringing to teach, instruct, and counsel his Soldiers and others.  He also points out that he was deployed numerous times and always followed orders to the best of his abilities.

4.  The applicant provides the first page of the Staff Judge Advocate's recommendation; a DD Form 2791 (Notice of Release/Acknowledgement of Convicted Sex Offender Registration Requirements); memoranda, dated 6 June 2007 and 9 November 2007; four DA Forms 2166-8 (Noncommissioned Officer Report (NCOER)); and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The Disabled American Veterans, as counsel for the applicant, requests that the applicant's dishonorable discharge be upgraded.

2.  Counsel states that the applicant served for over 19 years in the Army, that during his military service he was awarded five awards of the Army Commendation Medal and five awards of the Army Achievement Medal, and that his NCOERs show his military performance was exemplary.  Counsel points out that the applicant paid his debt to the military and served his sentence and asks the Board not to continue to punish him and allow him to continue with his life.  Counsel further asks the Board to consider his accomplishments and not simply dismiss his dedicated 19-plus years of service to our country.

3.  Counsel provides an undated informal hearing presentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 July 1988 and served as a combat engineer.  He remained on active duty through continuous reenlistments and his last reenlistment was on 1 January 2000 for an indefinite period.  He attained the rank of sergeant first class on 1 June 2003. 

2.  On 30 June 2004, nonjudicial punishment was imposed against the applicant for having sexual intercourse with a married female not his wife.  His punishment consisted of a forfeiture of pay and extra duty.

3.  On 1 March 2007, the applicant was convicted by a general court-martial of maltreatment of a private first class by calling her a bitch, rape, indecent assault, and assault consummated by a battery.  He was sentenced to be confined for 10 years, to be reduced to E-1, and to be discharged from the service with a dishonorable discharge.  On 26 November 2007, the convening authority approved only so much of the sentence as provided for a reduction to E-1, confinement for 38 months, and a dishonorable discharge.

4.  The decision of the U.S. Army Court of Military Review is not available.  However, on 30 October 2008, the convening authority ordered the dishonorable discharge to be executed, indicating the sentence was affirmed.

5.  The applicant provided a DD Form 2791, dated 10 March 2009, which indicates he acknowledged he was informed of registration requirements for the offense of indecent assault.  This form states, in pertinent part, that he was convicted of indecent assault on 1 March 2007.

6.  Accordingly, the applicant was discharged with a dishonorable discharge on 20 March 2009 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  He had served a total of 18 years, 7 months, and 12 days of creditable active service with 750 days of lost time due to confinement.  His DD Form 214 shows the Army Commendation Medal, the Army Achievement Medal, the Joint Meritorious Unit Award, the Valorous Unit Award, the Army Superior Unit Award, the Army Good Conduct Medal (5th Award), the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Southwest Asia Service Medal with one bronze service star, the Global War on Terrorism Service Medal, the Armed Forces Service Medal, the Humanitarian Service Medal, the Noncommissioned Officer Professional Development Ribbon (3rd Award), the Army Service Ribbon, the Overseas Service Ribbon (2nd Award), the Kuwait Liberation Medal (Saudi Arabia), the Kuwait Liberation Medal (Kuwait), and the Driver and Mechanic Badge as authorized awards.

7.  The applicant provided four NCOERs for the periods September 2001 to August 2002, September 2002 to August 2003, August 2004 to June 2005, and July 2005 to June 2006 which show he was rated "Successful" for his overall performance and rated "Superior" for his overall potential for promotion and/or service in positions of greater responsibility by his senior raters.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

9.  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.
10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  Most of the applicant's contentions relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the general court-martial appellate process.

2.  The applicant contends that he was released under the charge of indecent assault.  The DD Form 2791 indicates that the applicant acknowledged he was informed of registration requirements for the offense of indecent assault.  The applicant was convicted of two specifications of indecent assault.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  The 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.

4.  The applicant's entire military service, his awards and decorations, and his accomplishments were noted.  However, the applicant was a sergeant first class and his record of service during his last enlistment included one nonjudicial punishment for adultery, one general court-martial conviction for serious offenses which included rape and indecent assault, and 750 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable 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)                                         AR20090015646



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ABCMR Record of Proceedings (cont)                                         AR20090015646



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