IN THE CASE OF:
BOARD DATE: 03 June 2010
DOCKET NUMBER: AR20090020294
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 bad conduct discharge (BCD) be upgraded to a fully honorable discharge and that he be given a REENTRY (RE) Code of 1.
2. The applicant states that he was falsely accused and convicted of committing indecent liberties and acts upon a child and he pled guilty because his lawyer told him it would be in his best interest to plead guilty so the victim would not be brought into court. He goes on to state the victim was his sister-in-law who has now come forward and confessed that she made up the story because she was angry with him. He also states that her parents contacted the local sheriff and his unit at Fort Stewart, Georgia. She has now written a letter that she had notarized and the case was thrown out of the civil courts. He continues by stating that he hopes this can be fixed because he desires to serve again.
3. The applicant provides an unofficial handwritten statement from the alleged victim, an unofficial typewritten statement from his mother-in-law, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant initially enlisted in the Regular Army on 2 October 1996 for a period of 3 years and training as a fire support specialist. He completed his training and was transferred to Fort Benning, Georgia. He reenlisted on 14 May 1999 for a period of 4 years, a selective reenlistment bonus and stabilization at Fort Benning.
3. On 28 April 2001, the applicant was convicted pursuant to his plea by a general court-martial of committing indecent liberties with a child between on or about 15 September and 15 October 2000 and committing indecent acts with a child on or about 10 November 2000. He was sentenced to reduction to pay grade of E-1, to be confined for 8 months and to be discharged with a BCD.
4. On 8 January 2002, the United States Army Court of Criminal Appeals affirmed the findings and the sentence as approved by the convening authority.
5. On 7 November 2002, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He had served 6 years, 1 month, and 6 days of total active service and he was assigned an RE code of 4.
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 therefore appear to be appropriate considering the available facts of the case.
3. The applicants contentions and supporting documents have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and the unofficial nature and limited amount of his supporting documents.
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.
ABCMR Record of Proceedings (cont) AR20090020294
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