IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100011008 


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 be upgraded.

2.  The applicant states:

	a.  due to illegal confinement, he requests his discharge be upgraded to honorable or general based on equitable relief for violating his constitutional rights;

   b.  U.S. military officials at the U.S. Disciplinary Barracks (USDB) violated their own military regulation (Memorandum of Understanding Among Department of Defense Service Clemency and Parole Boards and Corrections Headquarters Agencies concerning standardized procedures for management of supervised release) when they illegally confined him past his minimum release date of 8 January 2010;

   c.  USDB officials violated the military regulations when they wrote him a disciplinary report and held a disciplinary board based on an Air Force regulation that lacks jurisdiction over him; and

   d.  the grievous violation of military regulations resulted in him losing 90 days good conduct time and being illegally confined past his minimum release date



3.  The applicant provides:

* Memorandum of Understanding Among Department of Defense Service Clemency and Parole Boards and Corrections Headquarters Agencies concerning standardized procedures for management of supervised release
* Department of the Air Force memorandum for all confinement facility commanders concerning mandatory supervised release
* Disciplinary Report
* Discipline and Adjustment Board Report
 
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 November 2000 for a period of 4 years.  He successfully completed his training and was awarded military occupational specialty 44B (metal worker).

2.  On 20 February 2003, the applicant was convicted by a general court-martial of two specifications of sodomy with a child under the age of 16 years, committing an indecent act upon the body of a child under the age of 16 years, taking indecent liberties with a child under the age of 16 years, and making a false official statement.  He was sentenced to be reduced to pay grade E-1, to be confined for 12 years, and to be discharged from the service with a bad conduct discharge.  On 9 July 2003, the convening authority approved the sentence.

3.  The decision of the U.S. Army Court of Criminal Appeals is not available.  However, on 8 February 2006, the convening authority ordered the bad conduct discharge to be executed.

4.  Accordingly, the applicant was discharged with a bad conduct discharge on 4 December 2006 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  He served a total of 2 years and 20 days of creditable active service with lost time from 7 December 2002 to 4 December 2006.

5.  On 28 October 2008, the Army Clemency and Parole Board voted to place the applicant on mandatory supervised release (MSR) upon his minimum release date in January 2010.  The applicant received instructions to provide an acceptable release plan as a prerequisite to being released at that time.  He failed to do so.  As a result, confinement officials cited the applicant on 


30 December 2009 for failing to provide a plan and, after a hearing, revoked a portion of his earned good time credit.  The revocation stipulated the forfeiture would end and the applicant would be released on MSR once he provided an acceptable release plan.  The applicant eventually complied and he now is out of confinement and serving the remainder of his sentence on MSR.

6.  In support of his claim, the applicant provided a DD Form 2714 (Inmate Disciplinary Report), dated 30 December 2009, which shows he received a disciplinary report on 30 December 2009 for violation of Article 92 of the Uniform Code of Military Justice (he failed to submit an acceptable mandatory supervised release plan as ordered by the Army Clemency and Parole Board on 28 October 2008).  His minimum release date is shown as 9 January 2010.

7.  On 5 January 2010, a Discipline and Adjustment Board found the applicant guilty of the offense and recommended that he forfeit 90 days of good conduct time.  The recommendation was approved on 6 January 2010.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special 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.  The applicant's contentions were carefully considered.  However, the USDB followed established and legal procedures in revoking a portion of his good time credit for his failure to provide an acceptable release plan.  Good time credit against a sentence to confinement is not a guarantee for an early release from confinement.  It is an incentive which an inmate can forfeit for failing to comply with the conditions for release on MSR.  These conditions are placed on an inmate to ensure he does not place himself in a position to reoffend.

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.  The applicant's record of service included a general court-martial conviction for serious offenses upon a child under the age of 16 (sodomy, indecent act, and taking indecent liberties) and making a false official statement.  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 an upgraded 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)                                         AR20100011008



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ABCMR Record of Proceedings (cont)                                         AR20100011008



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