IN THE CASE OF: 

		BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100015966 


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 an upgrade of his bad conduct discharge to an honorable discharge.

2.  The applicant states he is facing deportation from the United States.  He joined the Army to serve and did his best.  He feels he was wrongfully accused and convicted.  He graduated from college with a Bachelor of Arts Degree from Long Island University since his discharge and he is working honestly and paying taxes.  He is presently attending graduate school.

3.  The applicant provides the following:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 18 May 2010
* unofficial-student copy of transcript from the Office of the Registrar, State University of New York Maritime College
* employment candidate notification of examination results from the New York State Office of Mental Health
* certificate of achievement from the Thomas Shortman Training Fund
* certificate from Long Island University Brooklyn Campus naming the applicant to the Dean's List
* certificate from the State University of New York Maritime College at Fort Schuyler certifying applicant completed a 24-hour course on Maritime Security Professional Training
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 12 September 2008
* certificate of completion of the Antiterrorism Level 1 Awareness Training
* academic record from Old Dominion University
* Headquarters, Multi-National Corps-Iraq, action memorandum
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* memorandum for record concerning the conduct and character of the applicant from the Officer-in-Charge, New York State Division of Military and Naval Affairs Chemical, Biological, Radiological, Nuclear, and High-Yield Explosives Enhanced Response Force, dated 3 October 2005
* letter to applicant from U.S. Immigration and Customs Enforcement releasing him on parole, dated 14 May 2010
* stipulations of expected testimony
* U.S. Army Court of Criminal Appeals Notice of Court-Martial Order Correction
* U.S. Army Court of Criminal Appeals Decision

CONSIDERATION OF EVIDENCE:

1.  On 11 September 2002, the applicant was granted a waiver to join the New York Army National Guard.  He had prior service in the U.S. Navy that ended in receipt of a discharge under other than honorable conditions for misconduct.  He was ordered to active duty in support of Operation Iraqi Freedom on 19 November 2004 in military occupational specialty 45B (Small Arms/Artillery Repairman).

2.  The applicant was subsequently assigned to the 145th Maintenance Company in Iraq.  Available records reflect that on 25 October 2005 he was confined by military authorities at the Regional Correctional Facility, Fort Knox, KY.

3.  New York Army National Guard Orders 076-1003, dated 17 March 2006, separated the applicant from the Army National Guard effective 19 November 2005.  The type of separation was uncharacterized.

4.  Multi-National Corps-Iraq General Court-Martial Order Number 4, dated 4 February 2007, shows the applicant was arraigned at Camp Victory, Iraq, on 17 March 2006 on the following offenses:

	a.  Charge I (one specification) – rape.  He pled not guilty.  He was found not guilty of rape, but guilty of assault consummated by battery.

	b.  Charge II (three specifications) – committing an indecent assault on a person (Soldier) not his wife.  He pled not guilty to all specifications.  He was found not guilty of one specification and guilty of the other two.

5.  The sentence was adjudged on 22 October 2005.  The applicant was sentenced to be reduced to the grade of E-1, to forfeit $1,235.00 pay per month for 6 months, to be confined for 6 months, and to be discharged from the service with a bad conduct discharge.  The convening authority approved the reduction to E-1, 4 months in confinement, and a bad conduct discharge.

6.  The U.S. Army Court of Criminal Appeals affirmed the finding and sentence on 23 July 2007.  The court also issued a notice of court-martial order correction on the same day.

7.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General Court-Martial Order Number 61, dated 3 April 2008, ordered the sentence to a bad conduct discharge adjudged on 22 October 2005 executed.

8.  The applicant's DD Form 214 shows he was discharged on 12 September 2008 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial.  He received a bad conduct discharge.

9.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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 requests that his bad conduct discharge be upgraded to an honorable discharge as he is facing deportation from the United States.  He feels he was wrongfully accused and convicted.  Since his discharge he graduated from college with a Bachelor of Arts Degree from Long Island University and he is working honestly and paying taxes.  He is presently attending graduate school.

2.  His 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 applicant's discharge appropriately characterizes the misconduct for which he was convicted.

3.  The applicant's service clearly did not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

4.  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 were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20100010650



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ABCMR Record of Proceedings (cont)                                         AR20100015966



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