BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110013281 


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, that his bad conduct discharge be upgraded to either a general or honorable discharge.

2.  The applicant states the judge made an error in stating that the highest discharge he could receive in order to receive his benefits was a bad conduct discharge.

3.  The applicant provides no additional documentary evidence in support of this 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.  His military records show he enlisted in the Regular Army on 6 March 1986.  He completed training and he was awarded the military occupational specialty of 14T (Patriot Operator).  He continued to serve through four reenlistments.  The highest rank/grade he held was staff sergeant/E-6.

3.  General Court-Martial Order Number 10 (corrected), dated 13 March 2003, shows he pled not guilty and was found guilty of:

* carnal knowledge on or about 2 November 2000
* carnal knowledge on or about 3 November 2000
* carnal knowledge on or about 2 December 2000
* sodomy with a child under 16 years on or about 8 September 2000
* sodomy with a child under 16 years on or about 15 September 2000
* sodomy with a child under 16 years on or about 29 September 2000
* sodomy with a child under 16 years on or about 13 October 2000
* sodomy with a child under 16 years on or about 2 November 2000
* sodomy with a child under 16 years on or about 9 November 2000
* sodomy with a child under 16 years on or about 2 December 2000
* sodomy with a child under 16 years on or about 2 December 2000
* indecent act upon body of a child under 16 years on or about 8 September 2000
* indecent act upon body of a child under 16 years on or about 15 September 2000
* indecent act upon body of a child under 16 years on or about 29 September 2000
* indecent act upon body of a child under 16 years on or about 13 October 2000
* adultery on or about 2 November 2000
* adultery on or about 3 November 2000
* adultery on or about 2 December 2000
* induce a minor to engage in sexually explicit conduct for production of a visual depiction of such conduct on or about 2 December 2000
* knowingly and wrongfully possess matter which contained child pornography on or about 4 January 2000

4.  On 22 February 2002, he was sentenced to be reduced to private/E-1, to forfeit all pay and allowances, to be confined for 8 years, and to be discharged from the service with a bad conduct discharge.

5.  The convening authority approved only so much of the adjudged sentence of a bad conduct discharge, reduction to private/E-1, confinement for 95 months, and forfeiture of all pay and allowances.
6.  General Court-Martial Order Number 13, dated 22 February 2007, shows pursuant to Article 66, Uniform Code of Military Justice (UCMJ) the finding of guilty of knowingly and wrongfully possessing matter which contained child pornography on or about 4 January 2000 was set aside and that specification was dismissed.  The remaining findings of guilty were affirmed.  Pursuant to Article 66, UCMJ, the court affirmed only so much of the sentence as provided for reduction to the grade of private/E-1, forfeiture of all pay and allowances, confinement for 90 months, and a bad-conduct discharge, adjudged on 22 February 2002, as promulgated in Corrected General Court-martial Order Number 10, dated 13 March 2003.  It shows the appellate review was completed and the bad conduct discharge was ordered executed.

7.  Accordingly, the applicant was discharged as a result of a court-martial on 4 December 2007 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3.  He was given a bad conduct discharge.  The DD Form 214 he was issued shows he completed 16 years, 10 months, and 18 days of active service during this period.  Item 29 (Dates of Time Lost During This Period) contains the entry, "Under 10 USC 972:  20020222-20070102."

8.  Army Regulation 635-200, 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.  The appellate review must be completed and the affirmed sentence ordered duly executed.

9.  Army Regulation 635-200, paragraph 3-7a, states 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.

10.  Army Regulation 635-200, paragraph 3-7b, states 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.

11.  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 contends the judge made an error in stating the highest discharge he could receive in order to receive his benefits was a bad conduct discharge.  However, he provided no evidence to support this contention.  Even if he had, the fact remains that the applicant was issued a bad conduct discharge, which was an authorized punishment, pursuant to the approved sentence of a general court-martial for:

* three incidents of carnal knowledge
* eight incidents of sodomy with a child under 16 years 
* four incidents of an indecent act upon the body of a child under 16 years
* three incidents of adultery
* inducing a minor to engage in sexually explicit conduct for production of a visual depiction of such conduct

2.  The appellate review was completed and the affirmed sentence ordered executed.  His conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time and the discharge appropriately characterizes the misconduct for which he 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.  Absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

4.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable or a general 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)                                         AR20110013281



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ABCMR Record of Proceedings (cont)                                         AR20110013281



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