IN THE CASE OF:	

		BOARD DATE:	 06 May 2010 

		DOCKET NUMBER:  AR20090018349 


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 an honorable discharge and the reason for discharge changed from court-martial, other to convenience of the government.

2.  The applicant states he believes his discharge should be upgraded and that the presumption of regularity in the characterization of his discharge does not apply.  He states he warrants an upgrade of his discharge based on the following reasons:

	a.  his discharge is inequitable because it was based on an isolated incident in seven years of service;

	b.  he had an undiagnosed personality disorder or a psychiatric condition that impaired his ability to serve and he was not given a psychiatric evaluation prior to his court-martial;

	c.  he had medical problems following his return from Kuwait that impaired his ability to serve;

	d.  his ability to serve was impaired due to family problems.  After arriving in Germany, his wife had to have three surgeries with the third one leaving her in the intensive care unit and him with the care of a 4-month old son and a 4-year old daughter;

	e.  he had attempted to get a compassionate reassignment but was told by the chaplain to forget it because his wife's medical problems could be handled in Germany;

	f.  he has two sons who may benefit if they develop health problems related to his having been a Persian Gulf veteran (Persian Gulf Syndrome);

	g.  his average conduct and efficiency ratings were good;

	h.  he was awarded the Army Commendation Medal with one Oak Leaf Cluster, Army Achievement Medal, Armed Forces Expeditionary Medal; Korea Defense Service Medal, and attended the Platoon Leaders Development Course;

	i.  although he did not serve in actual combat, he served in Kuwait during Operation Intrinsic Action; and

	j.  he had two prior honorable discharges.

3.  The applicant provides only his personal statement outlining why he believes he warrants an upgrade.  

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 enlisted in the Regular Army on 6 June 1991, completed training, and was awarded military occupational specialty (MOS) 13M (Multiple-Launch Rocket System Crewmember).  He reenlisted twice prior to the incidents that led to his court-martial.

3.  The applicant served in Kuwait from April 1996 to June 1996.

4.  The applicant was assigned to duty in Germany with his family (his wife, a 
4-year old step-daughter, and a 4-month old son) arriving in March 1998.

5.  His wife was hospitalized for three surgeries and suffered complications requiring an extended stay in the hospital during May 1998.  During the period his wife was hospitalized, the applicant committed sodomy and other indecent acts on his 4-year old step-daughter.  Following his wife's release from the hospital her daughter told her about the incidents and she confronted her husband about it.  He admitted to his improper actions but she did not report the incidents to authorities hoping he would report them himself and get help.  She subsequently returned to the United States with her children.

6.  The applicant first spoke with a chaplain in June 1998 during the process of requesting a compassionate reassignment after his wife's departure.  On 20 September 1998, he revealed to the chaplain that he had an improper relationship with his step-daughter.  The following day the chaplain contacted Family Advocacy personnel and was advised by them that he had no choice but to report any child sexual abuse to the appropriate authorities.

7.  On 21 September 1998, the chaplain notified the applicant that he would have to report him and urged the applicant to report himself.  After further conversation with the chaplain, the applicant and the chaplain went to the military police (MP) station.  The applicant spoke with the MP's and reported his misconduct.  The U.S. Army Criminal Investigation Command (USACIDC, also known as CID) was notified and after informal discussions the applicant was read his rights.  He waived his right to counsel and against self-incrimination in making a formal confession.

8.  On 15 December 1998, in accordance with his plea agreement, the applicant was found guilty by a general court-martial of sodomy with a child under the age of 12 and indecent acts with a female under the age of 16.

9.  He was sentenced to reduction to the rank/grade of private (PV1)/E-1, total forfeiture of all pay and allowances, confinement for a period of six years, and a dishonorable discharge.  His sentence was adjudged on 15 December 1998.  The court recommended that the pay and allowances of the accused be directed to his dependents to the maximum extent permissible by law.

10.  On 8 January 1999, the general court-martial convening authority (GCMCA) deferred both the adjudged and statutory forfeitures of pay and allowances, pursuant to Articles 57(a) and 58b, Uniform Code of Military Justice (UCMJ) and directed that such monies be paid to his wife for the care of their child.

11.  On 7 April 1999 the GCMCA approved the sentence for reduction to the rank/grade of PV1/E-1, total forfeiture of all pay and allowances, confinement for 60 months, and a dishonorable discharge.  Except for the part of the sentence extending to a dishonorable discharge, the GCMCA directed it be executed.

12.  The applicant was initially discharged on 14 February 2002 with a dishonorable discharge.  However, this discharge was revoked as a result of the subsequent appeal of his conviction.

13.  The United States Court of Appeals for the Armed Forces found that there was a misapplication of the facts and law in the use of the applicant's confessions and communications with the chaplain and that the chaplain was given erroneous information about being required to report the applicant's abuse. As a result it was determined that the original court-martial was fatally flawed and the findings of guilty and sentence were set aside.  The Court allowed that a rehearing could be ordered.  The chief judge, in a dissenting opinion, found no fatal flaw.

14.  The GCMCA at Fort Knox, KY referred the case to a second general court-martial.

15.  On 30 January 2003, he was again found guilty of sodomy with a child under the age of 12 and indecent acts with a female under the age of 16.  He was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, confinement for 48 months, and reduction to the rank/grade of PV1/E-1.

16.  The GCMCA approved the sentence for reduction to the rank/grade of PV1/E-1, total forfeiture of all pay and allowances, confinement for four years, and a BCD and, except for the part of the sentence extending to a BCD, directed it be executed.

17.  General Court-Martial Order Number 293, dated 21 November 2003, shows that pursuant to Article 66, UCMJ, the findings of guilty, the sentence to a BCD, confinement for 1,206 days, forfeiture of pay, and reduction to the rank/grade of PV1/E-1 were affirmed on 23 July 2003.  He was credited with 1,217 of confinement against his sentence to confinement and 11 days toward his forfeiture of pay.  The confinement portion of his sentence having been served and Article 71(c) having been complied with, it was directed that the BCD be executed.

18.  The applicant was discharged with a bad conduct discharge on 5 March 2004.  He was issued a separation program designator (SPD) code of "JJD" with 

a narrative reason of court-martial, other.  He was credited with 9 years, 4 months, and 18 days of service with 3 years, 3 months and 26 days of lost time and 9 months and 20 days of excess leave.

19.  His awards are shown as the Army Commendation Medal, Army Achievement Medal, Global War on Terrorism Service Medal, National Defense Service Medal, Korea Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, and the Driver and Mechanic Badge with Driver-W Bar.

20.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

21.  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.

22.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the policies and procedures for enlisted personnel separations.  In pertinent part it states at:

	a.  Paragraph 3-7a, that an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b, that a general under honorable conditions discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  

	c.  Paragraph 3-11, that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.  The reason and authority for separation will be entered per Army Regulation 635-5-1 (SPD Codes).  This regulation requires an 

SPD of JJD with a narrative reason of Court-Martial, Other for a court-martial directed BCD.

	d.  Paragraph 5–1 (Characterization of service or description of separation), that unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status.  Separation under this paragraph is the prerogative of the Secretary of the Army and is exercised sparingly.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he believes his discharge should be upgraded and that the presumption of regularity in the characterization of his discharge does not apply in his case.

2.  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. 

3.  In his application he alludes to possibly having had a personality disorder or a psychiatric disorder at the time of the offenses.  The record does not contain and the applicant offers no documentation to support this contention.  The applicant had not one, but two, opportunities to raise this factor in his own defense and failed to do so during either of his court-martial proceedings.

4.  Further, in the absence of evidence that, at the time of the commission of the offenses which led to his court-martial, he was so impaired by mental, emotional, psychological, or psychiatric problems as to be unable to distinguish right from wrong and to adhere to the right, the alleged undocumented diagnosis does nothing to demonstrate an injustice in the discharge or mitigate the offense; therefore, his service was appropriately characterized.

5.  The applicant has failed to explain how any medical condition he may have been suffering from related to the offenses that resulted in his court-martial conviction.  At no time was his ability to perform his duties due to a medical problem raised.

6.  The earliest indication that the applicant sought a compassionate reassignment was after his wife had recovered from her surgeries, was made aware of the sexual abuse, and had already departed Germany as a result of the applicant's not reporting the incident and seeking help.

7.  The applicant was responsible for the care and well-being of his step-daughter especially during a period of additional stress and turmoil brought on by his wife's serious medical problems and hospitalizations.  Instead of protecting his step-daughter at this time the applicant abused his parental trust to protect her as well as sexually abused her.  The applicant's prior period of honorable service and his personal awards do not outweigh the seriousness of the offenses.

8.  The applicant's court-martial directed separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

9.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

10.  The applicant's narrative reason for separation is by reason of court-martial because that is the reason for his discharge.  To change the narrative reason for separation entered on the DD Form 214 would mask the reason for his separation.  A court-martial was warranted for the offenses committed and he was sentenced to a BCD by that court-martial.  Additionally, the applicant has not provided sufficient evidence or convincing argument to warrant exercising the prerogative of the Secretary of the Army to change the narrative reason for separation to convenience of the government.  Therefore, there is no basis for granting this portion of his requested relief.

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)                                         AR20090018349



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ABCMR Record of Proceedings (cont)                                         AR20090018349



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