IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100023774 


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.

2.  The applicant states he feels the discharge he received was unjust given the circumstances.  He was charged with assault and feels the bad conduct discharge was an excessive punishment for the incident that occurred.  He served a total of 8 years, most of which was honorable.  He held the rank/grade of specialist (SPC)/E-4 and earned an Army Good Conduct Medal.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) for a period of 4 years on 20 September 2000 and held military occupational specialty 89B (Ammunition Specialist).  He executed a 4-year reenlistment on 23 October 2003 and attained the rank/grade of SPC/E-4.

2.  He was awarded the Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon.  He was assigned to Fort Bragg, NC.

3.  On 22 June 2006, he was convicted by a general court-martial of:

* one specification of making a false statement by answering "No" to a special agent when asked "before or during sexual intercourse, did Mrs. AC ever tell you she did not want to have sex" (Article 107)
* one specification of committing an assault upon Mrs. AC by choking her with intent to commit rape (Article 134)

The court sentenced him to a reduction to the lowest enlisted grade, confinement for 2 years, and a bad conduct discharge.  On 30 November 2006, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed.  

4.  On 11 April 2007, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

5.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 197, dated 13 September 2007, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

6.  Accordingly, he was discharged from the Army on 25 January 2008.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 5 years, 10 months, and 17 days of creditable military service with 537 days of time lost.

7.  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 (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.

8.  Army Regulation 635-200 sets forth the basic policy governing 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.  

9.  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.

10.  According to the Manual of Courts-Martial - United States, 2008 Edition, the maximum punishment for the applicant's violations of the Uniform Code of Military Justice are as follows:

* Article 107, false official statement, maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
* Article 134, assault with intent to commit rape, maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded.

2.  The applicant was convicted by a general court-martial of one specification of making a false statement and one specification of committing an assault upon a female by choking her with intent to commit rape.  The court sentenced him to a reduction, confinement, and a bad conduct discharge.  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 the applicant was convicted.

3.  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 serious offenses 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.

4.  Contrary to his argument that his punishment was excessive, the offenses he committed carried a much harsher sentence of a dishonorable discharge and a longer confinement sentence.  

5.  Contrary to his argument that he served for 8 years, most of which was honorable, his service from September 2000 to January 2008 included 537 days of lost time. 

6.  Based on his misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20100023774



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ABCMR Record of Proceedings (cont)                                         AR20100023774



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