IN THE CASE OF:	  

		BOARD DATE:	  12 January 2012

		DOCKET NUMBER:  AR20110011767 


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 his bad conduct discharge be reversed or expunged.

2.  The applicant states, in effect, the following:

* the charges of his general court-martial and discharge were unjustified
* he was used as an example out of all five noncommissioned officers (NCOs) involved 
* the two initial entry training (IET) female Soldiers whom he was court-martialed for were not under his direct supervision or care as students
* the two IET Soldiers made it a point to pursue instructors by any means necessary and would visit his off-duty employment site every weekend
* he went against his better judgment, met them at their room, and consumed alcoholic beverages
* flirtations turned into dare games and eventually into a sexual three-some
* the incident was not discussed or addressed again
* the two IET Soldiers were bragging about their encounter at the barracks and plotting a scheme to see how many instructors they could seduce
* there were four other individuals seduced
* the two IET Soldiers were promiscuous and had no problem expressing it
* as an NCO he should have acted as such and put a stop to "their actions"
* there is no excuse for his actions except that his personal life was in disarray at that time
* his actions did warrant punishment, but it did not warrant ruining and ending his career
* he does not understand why he was the only one out of four others involved to receive punishment  

3.  The applicant provides:

* self-authored statements
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* An appeal provided to the U.S. Army Court of Criminal Appeals 

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 enlisted in the Regular Army on 31 January 1990.  He completed training and was awarded military occupational specialties (MOS) 11B (Infantryman) and (Avionic Mechanic).  The highest rank/grade he attained was staff sergeant/E-6.

3.  On 22 February 1999, the applicant was assigned to the 3rd Staff and Faculty, Fort Eustis, Virginia, as an Avionics Instructor/Writer. 

4.  General Court-Martial Order Number 7, Headquarters, U.S. Army Transportation Center Staff Judge Advocate, Fort Eustis, VA, dated 4 June 2001, shows the following charges, pleas, and findings:

   a.  Charge I.  Article 92.  Plea:  Guilty.  Finding:  Guilty

* Specification 1:  Between on or about 3 September 1999 and 6 September 1999, failure to obey a lawful general regulation by wrongfully engaging in physical contact of a sexual nature with an IET student, to wit:  oral sodomy.  Plea:  Guilty.  Finding:  Guilty
* Specification 2:  Between on or about 3 September 1999 and 6 September 1999, failure to obey a lawful general regulation by wrongfully engaging in physical contact of a sexual nature with a second IET student, to wit:  oral sodomy.  Plea:  Guilty.  Finding:  Guilty
* Specification 3:  Between on or about 3 September 1999 and 6 September 1999, failure to obey a lawful general regulation by wrongfully engaging in a game of strip poker and drinking alcohol with IET students.  Plea:  Guilty.  Finding:  Guilty
* Specification 4:  Between on or about 3 September 1999 and 6 September 1999, failure to obey a lawful general regulation by wrongfully allowing IET students to enter and be transported in his POV.  Plea:  Guilty.  Finding:  Guilty

   b.  Charge II.  Article 107.  Plea:  Guilty.  Finding:  Guilty

* Specification:  At or near Fort Eustis, VA, on or about 29 November 1999, with intent to deceive, make a false official statement.  Plea:  Guilty.  Finding:  Guilty
   
   c.  Charge III.  Article 125.  Plea:  Guilty.  Finding:  Guilty

* Specification 1:  At or near Newport News, VA, between on or about 3 September 1999 and 6 September 1999, wrongfully commit sodomy with an IET student.  Plea:  Guilty.  Finding:  Guilty 
* Specification 2:  At or near Newport News, VA, between on or about 3 September 1999 and 6 September 1999, commit sodomy with a second IET student.  Plea:  Guilty.  Finding:  Guilty

   d.  Charge IV.  Article 134.  Plea:  Guilty.  Finding:  Guilty

* Specification 1:  At or near Newport News, VA, between on or about 3 September 1999 and 6 September 1999, wrongfully commit an indecent act with an IET student by engaging in intercourse and oral sodomy in the presence of another IET student.  Plea:  Guilty.  Finding:  Guilty 
* Specification 2:  At or near Newport News, VA, between on or about 3 September 1999 and 6 September 1999, wrongfully commit an indecent act with an IET student by engaging in intercourse and oral sodomy in the presence of another IET student.  Plea:  Guilty.  Finding:  Guilty

5.  The applicant was sentenced to a bad conduct discharge, reduction to the grade of E-1, and confinement for 8 months.  His confinement was deferred on 12 July 2000.
6.  On 24 September 2002, the U.S. Army Court of Criminal Appeals affirmed the findings and sentence with the following corrections:

* correct the date of promulgating order as 30 May 2001
* to reflect the Plea and Finding except the words "intercourse and" 

7.  On 6 May 2003, the applicant was issued a bad conduct discharge.  He completed 13 years, 3 months, and 6 days of creditable active service.

8.  Army Regulation 635-200 provides guidance on characterization of service.

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) 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.

	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.

9.  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 change a discharge due to matters which should have been raised in the appellate process, 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 request was carefully considered and determined to lack merit.

2.  Trial by 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 characterizes the misconduct for which the applicant was convicted.  Therefore, the requested relief is not warranted.

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)                                         AR20110011767



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ABCMR Record of Proceedings (cont)                                         AR20110011767



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