IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100018779 


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 (BCD) to a general under honorable conditions discharge.

2.  He states that he served honorably during his first term of service.  The incident that led to his discharge was isolated, which occurred during his second term of service.  He states he did not have any willful or persistent misconduct during his honorable time.  Even though his most serious charge of "Forcible Sodomy" was overturned and reduced to "Consensual Sodomy" involving homosexual acts, it was not committed under aggravating circumstances, nor did it affect his duty performance.

3.  In addition, the military judge and prosecutor erroneously used an incident that occurred when he was a minor as cause to adjudge a conviction and BCD.  The discharge he received was extremely prejudiced, biased, and done in error due to a rehearing of the original trial being conducted almost 5 years later.  The BCD was inequitable in that it has affected his life by raising stigma and negative treatment because of his sexuality and causing people to believe he is some sort of predator preying on the vulnerable.  He was denied clemency due to fact that the convening authority was biased and under the impression that if he was discharged with a non-punitive discharge, he would receive back pay from 
2001 to 2006.

4.  He provides:

* two DA Forms 5689 (United States Army Oath of Reenlistment) certificates
* two DA Forms 256A (United States Army - Honorable Discharge) certificates
* a DA Form 458 (Charge Sheet)
* a DD Form 2707 (Confinement Order)
* a DA Form 4430-R (Department of the Army Report of Result of Trial)
* a Record of Trial memorandum
* five duty performance memoranda from former fellow Soldiers
* a Post-Trial Request for Discharge in Lieu of Trial by Court-Martial memorandum
* three Request for Clemency memoranda

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 27 August 1996.  He successfully completed basic and advanced individual training and he was awarded military occupational specialty 92Y (Unit Supply Specialist).

2.  On 14 June 1998, he was honorably discharged for the purpose of immediate reenlistment on 15 June 1998.  On 5 February 1999, he was promoted to the rank/grade of sergeant (SGT)/E-5.  He had been awarded the Army Commendation Medal, Army Achievement Medal, National Defense Service Medal, Army Good Conduct Medal, Global War on Terrorism Service Medal, and the Army Service Ribbon.

3.  While stationed at Baumholder, Germany, he was tried by a general court-martial (GCM) on 8 November 2000.  Contrary to his pleas of not guilty, he was convicted of:

* Charge I:  making a false official statement 
* Charge II:  committing forcible sodomy without consent
* Charge III:

* Specification 1:  committing an indecent act
* Specification 2:  fraternizing with an enlisted Soldier

4.  The court-martial sentenced him to reduction to E-1, forfeiture of all pay and allowances, confinement for 12 months, and a bad conduct discharge.

5.  On 18 December 2003, the U.S. Army Court of Criminal Appeals (ACCA) affirmed the findings and the sentence.  

6.  The U.S. Court of Appeals for the Armed Forces (CAAF) reversed the ACCA decision as to Charge II and the sentence, but affirmed the ACCA decision in all other respects.  The part of the finding of Charge II stating "by force and without consent of the Sergeant [T]" and the sentence were set aside.

7.  On 9 December 2005, a rehearing on the sentence and effected finding was conducted before a GCM.  Contrary to his pleas of not guilty, he was convicted of Charge II:  consensual sodomy [lesser charge of forcible sodomy without consent].  His prior convictions were upheld and were not impacted by the second hearing.

8.  The court-martial sentenced him to reduction to E-1, forfeiture of all pay and allowances, confinement for 3 months [credited with 282 days of confinement against the sentence of confinement], and a bad conduct discharge.  The GCM convening authority approved the sentence on 22 June 2006.

9.  The ACCA affirmed the sentence as adjudged at the rehearing and approved by the convening authority as correct in law and fact.  

10.  GCM Order Number 51, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, dated 20 February 2007, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

11.  On 29 June 2007, he was discharged from the Army with a bad conduct discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial, other.  He completed 10 years, 1 month, and 4 days of creditable active service with 272 days of time lost due to confinement.

12.  Army Regulation 635-200 sets forth the basic authority 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.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7c provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be used for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial.

14.  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 was convicted by a GCM which was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  It is acknowledged that he served honorably his first term of service.  However, his first term of service conduct and achievements alone are not a basis for upgrading a discharge on a second enlistment and, upon review, his conduct and achievements are not sufficient to mitigate his indiscipline in the Regular Army.

3.  He was given a bad conduct discharge pursuant to an approved sentence of a GCM.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  In order to justify correction of a military record, he must show or it must otherwise satisfactorily appear that the record is in error or unjust.  He did not submit evidence that would satisfy this requirement.  Given the seriousness of the offenses for which he was convicted, there is insufficient basis to warrant the relief requested.

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


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)                                         AR20100018779



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ABCMR Record of Proceedings (cont)                                         AR20100018779



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