IN THE CASE OF:	

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090016946 


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 his bad conduct discharge (BCD) be upgraded to a general under honorable conditions discharge and the opportunity to enlist in the U.S. Army.

2.  The applicant states he served for 7 years with no disciplinary infractions and displayed no pattern of misconduct.  He made one mistake and was sentenced to 16 months of confinement, loss of entitlements, and a BCD.  He claims he learned from his actions and will not repeat them.  He is requesting to be returned to active duty and to be allowed to serve his country.

3.  The applicant provides the following documents

* self-authored statement
* 19 character references
* Enlisted Record Brief (ERB)
* Noncommissioned Officer Evaluation Report (NCOER)
* clemency request memorandum, dated 20 February 2008
* two certificates of training
* DD Form 293 (Application for Review of Discharge or Dismissal)
* Congressional inquiry packet, dated 16 March 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 28 February 2002.  He successfully completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

2.  The record shows the applicant served in Iraq from 16 November 2004 to 15 November 2005 and earned the following awards during his active duty tenure

* Army Commendation Medal
* Army Achievement Medal with Oak Leaf Cluster
* Army Good Conduct Medal
* National Defense Service Medal
* Global War on Terrorism Expeditionary Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Combat Action Badge
* Parachutist Badge
* Driver and Mechanic Badge
* Parachute Rigger Badge

3.  On 22 October 2007, while serving in the rank of sergeant/E-5, a general court-martial (GCM) found the applicant guilty of violating Article 92 of the Uniform Code of Military Justice (UCMJ) by wrongfully fraternizing with a private (PVT)/E-1 in a way that was exploitative and coercive in nature and that involved the improper use of rank or position for personal gain.  The resultant sentence was a reduction to the rank of PVT/E-1, 16 months of confinement, and a BCD.

4.  On 28 February 2008, the GCM convening authority modified the confinement portion of the sentence to 12 months.  He also approved the modified sentence and directed all but the BCD portion be executed in Headquarters, U.S. Army Alaska, Fort Richardson, Alaska, GCM Order Number 2.

5.  On 30 October 2008, in Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, GCM Order Number 297, Article 71(c) of the UCMJ having been complied with, it was directed that the BCD portion of the sentence be duly executed.  On 19 March 2009, the applicant was discharged accordingly.

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he completed a total of 6 years, 3 months, and 23 days of creditable active military service.  Item 26 (Separation Code) shows he was assigned the separation program designator (SPD) code JJD and item 27 (Reentry Code) shows he was assigned the reentry eligibility (RE) code 4.  It also shows he was separated under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), by reason of "court-martial, other" and that he received a BCD.

7.  The applicant provides multiple character reference letters from his spouse, friends, classmates, former Soldiers and prior members of his former chains of command, and employers who indicate he is a family man, kind and honest, respectful, motivated, selfless, extremely competent, dedicated, and a reliable NCO.  These individuals support the applicant's request for an upgrade of his BCD and indicate he is suitable for military service.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the BCD portion of the sentence is ordered duly executed.

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 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.

10.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  RE-4 applies to persons who are ineligible for continued Army service.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes Army enlistment eligibility criteria.  The regulation stipulates that a person with prior service with a serious criminal misconduct conviction during military service is not eligible for reenlistment and the disqualification is not waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his BCD and to be allowed to enlist was carefully considered.  However, by law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  The supporting character references and clemency request are noteworthy; however, the evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.

3.  The applicant expresses remorse and his post-service conduct, as described in the supporting documents he provides, is admirable.  However, this does not sufficiently mitigate a serious criminal offense that resulted in his court-martial conviction involving improper use of his rank to exploit and coerce a junior Soldier.  Therefore, given the gravity of the offense that resulted in his GCM conviction and BCD, his overall record of service and post-service conduct are not sufficiently meritorious to support clemency in this case.

4.  In addition, the authority and reason for his discharge are proper and equitable and disqualify him from further service as shown by the RE-4 code he was assigned at discharge.  Therefore, absent evidence of error or injustice related to his court-marital conviction, his reentry disqualification remains valid and appropriate.  As a result, the evidence is also insufficient to support granting the portion of the requested relief related to the opportunity for further service in the Army and/or enlistment.

5.  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.

ABCMR Record of Proceedings (cont)                                         AR20090016946



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ABCMR Record of Proceedings (cont)                                         AR20090016946



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