BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110005933 


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, upgrade of his bad conduct discharge (BCD).

2.  The applicant states his representation was improper and unjust.  He was instructed to memorize the victim's statements and verify them so that his guilty plea would be accepted.  There were no witnesses, no motive, and no physical proof.  He truly did not understand the ramifications of his actions.  During the process of his Uniform Code of Military Justice (UCMJ) action, he was under evaluation by a medical evaluation board (MEB) for combat-related injuries.

3.  The applicant provides no additional documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 May 2004.  He completed training and he was awarded military occupational specialty 19D (cavalry scout).  He served in Iraq from 13 November 2005 to 11 November 2006.

2.  He was reported absent from his unit on 16 September 2007 with the intent of remaining away permanently in desertion status.  He was subsequently apprehended by civilian authorities on 3 January 2008.  He was returned to military control at Fort Knox, KY and placed in pre-trial confinement.


3.  On 3 January 2008, charges were preferred against the applicant for:

* committing sodomy with a child under the age of 12 between 1 May and
12 November 2005
* on divers occasions between 1 May and 12 November 2005, committing an indecent act on a female under the age of 16
* desertion from 16 September 2007 to 3 January 2008

4.  On 6 March 2008, the applicant was tried by a general court-martial.  He was found guilty of committing sodomy with a child under the age of 12 and committing indecent acts upon the body of a female (not his wife) under the age of 16.  The applicant was sentenced to a BCD, confinement for 32 months, and reduction to pay grade E-1.

5.  The Staff Judge Advocate (SJA) reviewed the case and the General Court Martial Convening Authority (GCMA) approved the finding and sentence except for disapproving confinement in excess of 18 months.

6.  The Army Court of Criminal Appeals ordered the GCMA's order reworded to accurately reflect the excepted substituted words.  After that was accomplished the findings and sentence was affirmed.

7.  The U.S. Court of Appeals for the Armed Forces denied his petition for review.

8.  Article 71(c) of the Uniform Code of Military Justice having been complied with, the BCD was ordered executed and the applicant was accordingly discharged on 27 February 2009 under the provisions of Army Regulation
635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 3, by reason of court-martial.  He completed 3 years,
7 months, and 20 days of creditable active service with 422 days of time lost due to confinement.

9.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of the appellate review and after such affirmed sentence has been ordered duly executed.

10.  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.

11.  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.

12.  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 states his representation was improper and unjust.  He was instructed to memorize the victim's statements and verify them so that his guilty plea would be accepted.  Other than his assertion, the applicant did not provide any evidence to support this allegation.

2.  There is no evidence to support the applicant's claim.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge was lenient compared to the misconduct for which the applicant pled guilty.  Therefore, he is not entitled to an honorable or a general discharge.

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 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)                                         AR20110005933



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005933



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1