IN THE CASE OF:	  

		BOARD DATE:	    4 November 2010

		DOCKET NUMBER:  AR20100012239 


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, in effect, an upgrade of his discharge.

2.  The applicant states he was a good Soldier for 19 years, his father was a prisoner of war during the Korean War, and he is the only son.  He joined the Army because he wanted to be like his father.  He had very good Noncommissioned Officer Evaluation Reports (NCOER), did something wrong one night, regrets it every day, and it has changed his life.  It is hard finding a job with the type of discharge he has as no one wants to hire him.  

3.  The applicant did not provide any additional documentary evidence. 

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's records show he enlisted in the Regular Army on                   11 September 1979.  He completed basic combat and advanced individual training and he was awarded military occupation specialty (MOS) 19E (Armor Crewman).  His records show he served through multiple reenlistments or extensions.  His last duty assignment was with Headquarters and Headquarters Company (HHC), III Corps, Fort Hood, TX.  The highest rank/grade he held was sergeant first class (SFC)/E-7.

3.  On 18 June 1998, at Fort Hood, TX, he pled guilty at a general court-martial to one specification of wrongfully committing sodomy with a junior enlisted Soldier on or about 11 and 12 July 1997, three specifications of committing indecent assault upon a junior enlisted Soldier on or about 11 and 12 July 1997, and one specification of supplying alcohol to his subordinate, a minor under the age of 21, on or about 11 and 12 July 1997.  The court found him guilty of all five specifications and sentenced him to a reduction to private (PV1)/E-1, a forfeiture of all pay and allowances, confinement for 3 years, and a dishonorable discharge.

4.  On 17 August 1998, the convening authority approved the reduction to PV1/
E-1, a forfeiture of $617.00 pay for 36 months, and the dishonorable discharge and, except for the dishonorable discharge, the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. 

5.  On 20 August 1999, the U.S. Army Court of Criminal Appeals reviewed his case and set aside the finding of guilty and dismissed the specification of supplying alcohol to his subordinate, a minor under the age of 21.  The remaining findings of guilty were affirmed as was the approved sentence.

6.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 82, dated 29 September 2000, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge sentence executed.

7.  On 14 November 2001, he was discharged from the Army.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial, with a dishonorable discharge.  This form further shows he completed a total of 
22 years, 2 months, and 4 days of creditable military service with 3 years,
2 months, and 18 days of excess leave and no lost time.


8.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  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.

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.  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.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his dishonorable discharge be upgraded was carefully considered. 

2.  The ABCMR does not upgrade discharges for the purpose of making the applicant eligible for employment opportunities.
 
3.  The evidence of record shows his trial by a general 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 characterized the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction 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.

4.  Although the applicant may have served satisfactorily for almost 19 years of his service, it does not mitigate the fact that he was convicted of wrongfully committing sodomy with a junior enlisted Soldier and three specifications of committing indecent assault upon a junior enlisted Soldier during his military service.  His offenses were especially egregious considering his rank and length of service at the time of the offenses.  

5.  After a review of the applicant’s record of service, it is clear that his service did not meet the criteria for a general discharge or an honorable discharge.  Therefore, there is an insufficient basis to upgrade his 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)                                         AR20100012239



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ABCMR Record of Proceedings (cont)                                         AR20100012239



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