BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110006806 


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 dismissal under other than honorable conditions to a general or honorable discharge.

2.  He states:

* he served 20 years in the Indiana Army National Guard (INARNG)
* he enlisted in the INARNG as a cavalry scout in January 1986
* he was selected for the fast track program and advanced to private first class (PFC)/E-3 out of basic training
* he was named Honor Graduate of his Primary Leadership Development Course (PLDC) class of 1987
* he moved up through the ranks to sergeant (SGT)/E-5 by 1989
* he transferred to a military police company where he qualified as a military policeman and completed his initial 8-year commitment
* he reenlisted and qualified as a counterintelligence agent and he was named Honor Graduate Phase II
* he joined the full-time Active Guard Reserve (AGR) program as a warehouse specialist and soon thereafter he was selected to represent his unit as the Noncommissioned Officer (NCO) of the Year
* he transferred to a company supply position and was promoted to staff sergeant (SSG)/E-6
* he applied for Warrant Officer Candidate School and he was accepted in August 2001
* he was promoted to chief warrant officer two (CW2)/W-2 in July 2003 and he held the officer in charge (OIC) position of the INARNG Class IX Warehouse
* while he was the OIC, their warehouse won the Supply Excellence Award two years in a row (2002 and 2003)
* he deployed to Afghanistan in July 2004 and he received excellent Officer Evaluation Reports (OERs) for his work in-country

3.  He provides the multitude of documents in support of his application.

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 had prior enlisted service in the INARNG and the U.S. Naval Reserve (USNR).  On 23 July 2001, he was appointed in the INARNG at the rank/grade of warrant officer one (WO1)/W-1.  On 30 July 2003, he was promoted to the rank/grade of CW2/W-2.

3.  He completed numerous military courses, to include the Basic Noncommissioned Officer Course and Primary Leadership Development Course, and he was awarded three awards of the Army Commendation Medal, two awards of the Army Achievement Medal, and the Army Good Conduct Medal, among other service medals, ribbons, and badges.

4.  On 1 May 2004, he was ordered to active duty in support of Operation Enduring Freedom and he was assigned to the 76th Infantry Brigade, Camp Phoenix, Afghanistan.

5.  On 7 April 2006, he was convicted pursuant to his pleas by a general court-martial (GCM) of:

* knowingly fraternizing with enlisted personnel
* wrongfully having sexual intercourse with a woman not his wife
* wrongfully committing an indecent act
* violating a lawful general order, by consuming alcohol
* while in a hostile fire zone, mixing alcoholic drinks at a party for enlisted Soldiers and having intercourse with an enlisted Soldier

6.  The Court found the applicant guilty of the charges and specifications and sentenced him to dismissal from the service and confinement for 2 years.  

7.  On 3 November 2006, the convening authority approved the sentence and, except for the dismissal, ordered the sentence executed.  He also waived the automatic forfeiture of pay and allowances for six months with the direction that those forfeitures be paid to his spouse.

8.  On 31 July 2007, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

9.  On 16 October 2007, the U.S. Court of Appeals of the Armed Forces denied the applicant’s petition for grant of review.

10.  On 29 January 2008, the ASA (M&RA) approved the applicant’s sentence as affirmed by the U.S. Court of Criminal Appeals and ordered the sentence executed.

11.  On 21 February 2008, the Chief of Staff of the Army, by order of the Secretary of the Army, ordered the applicant's dismissal from the Army at midnight on 6 March 2008.

12.  The DD Form 214 the applicant was issued at the time of his dismissal on
6 March 2008 shows he was dismissed from the Army under the authority of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-17, by reason of court-martial, with a character of service of under other than honorable conditions.  This form further shows he completed 6 years, 4 months, and 15 days of creditable active service with 288 days of time lost due to confinement. 

13.  Army Regulation 600-8-24 prescribes policies and procedures governing transfer and discharge of Army officer personnel.  Paragraph 5-17 of the regulation states, in pertinent part, that an officer convicted and sentenced to dismissal as a result of general court-martial proceedings will be processed pending appellate review of such proceedings.

14.  Army Regulation 600-8-24, paragraph 1-22, defines the types of an officer’s characterization of service:

	a.  Honorable characterization of service (Honorable Discharge).  An officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer.

	b.  Under honorable conditions characterization of service (General Discharge).  An officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate.

15.  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 record of service and achievements are noteworthy.  However, a good record of service and achievements alone are not a basis for upgrading a discharge and, upon review, the applicant's record of service and achievements are not sufficient to mitigate his indiscipline in the Army.

2.  The evidence of record confirms that his trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.
3.  The applicant's entire record of service was considered in this case.  However, given the seriousness of the offenses for which he was convicted and his rank, it is determined that his service was not sufficiently meritorious or mitigating 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)                                         AR20110006806



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110006806



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1