BOARD DATE:	  12 January 2012 

		DOCKET NUMBER:  AR20110014361 


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 (BCD) be upgraded to an honorable discharge.  He further requests his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show:

* he served honorably from 2001 to 2006
* the time he served in his military occupational specialty (MOS) in item 11 (Primary Specialty) of his DD Form 214
* the 6 months of foreign service in Somalia in item 12f (Foreign Service)
* his combat tour
* his time in the Delayed Entry Program (DEP) as inactive service in block 12e (Total Prior Inactive Service)

2.  The applicant states he was innocent of all charges.  There was evidence that was not submitted at his court-martial.  He asked the court for a change of venue but they denied his request.  He wanted to plead innocent but his lawyer insisted that he take a plea bargain.  He was promised that he would not lose any of his benefits or have trouble finding a civilian job because the offenses were military offenses; however, this has not been the case.  The Department of Veterans Affairs told him he has two DD Forms 214.  He would like a copy of his second DD Form 214.

3.  The applicant provided the following through his Congressman:

* self-authored statement
* 2 character letters/emails 
* memorandum from the Office of the Staff Judge Advocate 
* DA Form 4430 (Department of the Army Report of Result of Trial)
* DD Form 2707 (Confinement Order)
* 2 DA Forms 4187 (Personnel Action)
* Memorandum for removal from the promotion selection list
* General Court-Martial Order Number 7
* U.S. Army Court of Criminal Appeals decision
* U.S. Army Court of Appeals for Armed Forces decision
* General Court-Martial Order Number 124
* separation orders
* SGLV-8286 (Servicemembers' Group Life Insurance Election and Certificate)
* DD Form 93 (Record of Emergency Data)
* Enlisted Record Brief (ERB)
* DD Form 214

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the delayed entry program on 15 July 1991.  He enlisted in the Regular Army on 18 July 1991.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 15T (UH-60 Helicopter Repairer).  The highest grade he attained while serving on active duty was staff sergeant/E-6.

2.  Records show the applicant received nonjudicial punishment under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 
13 November 1998 for intending to defraud his brigade mess hall.  He falsely 
pretended to be and signed in as a meal card holder even though he was receiving separate rations.  He received a value of more than $100.00 in brigade mess hall services.

3.  On 23 April 2007, he was convicted by a general court-martial of:

* three specifications of violating a lawful general regulation by engaging in a relationship with a trainee that was not required by the training mission
* three specifications of cruelty and maltreatment of subordinates by maltreating a trainee who was subject to his orders

4.  The Court sentenced him to a reduction to private/E-1, confinement for 1 year, and a BCD.  However, there was a pretrial agreement concerning the sentence which: 


	a.  disapproved all confinement in excess of 6 months, any reduction in rank greater than a reduction to the pay grade of specialist/E-4, a dishonorable discharge, and any adjudged forfeitures of pay and allowance at initial action by the convening authority;

	b.  approved, if desired, a BCD if a punitive discharge was adjudged;

	c.  deferred, until initial action by the convening authority, any adjudged and automatic forfeitures of pay and allowance and reduction in rank; and

	d.  waived automatic forfeitures at the initial action for a period of 6 months and agreed to pay all waived forfeitures to the applicant's wife.

5.  A DD Form 2707 confirms that he began his confinement on 25 April 2007.  A 
DA Form 4187, dated 31 May 2007 shows his status changed from "present for duty" to "confined military authorities" on 23 April 2007.

6.  The convening authority approved his sentence on 5 September 2007, and approved/ordered the part of the sentence that provided for the reduction in grade to E-4, confinement for 6 months, and a BCD.  The automatic forfeiture of all pay and allowances and adjudged reduction to E-1 were deferred until 7 May 
2007.  The order also waved the required automatic forfeiture on 7 May 2007 for a period of 6 months, with payments to be made to his spouse.

7.  A DA Form 4187, dated 24 September 2007, shows his status changed from "confined military authorities" to "present for duty" on 22 September 2007.

8.  On 28 December 2007, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

9.  On 2 June 2008, the U.S. Court of Appeals for the Armed Forces denied his petition to grant a review.

10.  General Court-Martial Order Number 124, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY on 20 June 2008, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed.

11.  He was discharged from active duty in pay grade E-1 on 24 October 2008 as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, and issued a BCD.  He 

was credited with completing 16 years, 10 months, and 24 days of net active service.  He had 152 days of lost time due to confinement. 

12.  The applicant provided two character letters from Soldiers he led while assigned as their drill instructor.  These letters essentially state he would not have committed the offenses he was accused of because he was above such actions.  Further, both letters argue he was one of the best leaders they ever had.

13.  The applicant's ERB shows the following:

* 16 years and 3 months in MOS 15T
* 3 years, 4 months, and 27 days of foreign service (not reflected on his DD Form 214) this time includes 2 years, 9 months, and 25 days in Korea and 6 months and 2 days of foreign service in Somalia
* lists Somalia as a combat tour (1 April 1993 - 30 September 1993)

14.  The DD Form 214 provided by the applicant shows:

* Item 11: 15T1O UH-60 Helicopter Repairer - 00 years, 00 months
* Item 12e does not list his time in the DEP
* Item 12f as "0000 00 00"
* Item 18 (Remarks): Continuous Honorable Active Service:  18 July 1991 through 10 March 2005
* Item 18: Immediate Reenlistments This Period--18 July 1991 through 
13 November 1996, 14 November 1996 through 12 April 1998, 13 April 1998 through 8 June 2000, and 9 June 2000 through 10 March 2005
* Item 18 does not list his combat tour in Somalia
* Item 18 DEP:  15 July 1991 through 17 July 1991

15.  There is no record of a second DD Form 214 in his military records.

16.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 states a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it can be duly executed.  This regulation states in 

	a.  paragraph 3-7a, 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.

	b.  paragraph 3-7b, 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.  

17.  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 the 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.

18.  Army Regulation 635-5 (Separation Documents) states:

	a.  item 11 (Primary Specialty) of the DD Form 214 comes from the primary specialty of the ERB.  The titles of all MOS or AOC served for at least 1 year will be entered.  The number of years and months served will be entered for each 
MOS/AOC.  For time determination, 16 days or more count as a month.  Basic training and AIT do not count towards the time.

	b.  enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter “IMMEDIATE REENLISTMENTS THIS PERIOD” (specify dates) in item 18 of the DD Form 214.  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter “Continuous Honorable Active Service From” (first day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment). 

	c.  item 12e (Total Prior Inactive Service) of the DD Form 214 will not count DEP time that began on or after 1 January 1985.  This time is not creditable service for pay purposes and will not be entered in this block.  However, it is creditable service for completing the statutory military service obligation (MSO), and will be entered in item 18 of the DD Form 214.

	d.  for an active duty Soldier deployed with his or her unit during their continuous period of active service, enter “SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)” in item 18 of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his BCD be upgraded to an honorable discharge, his DD Form 214 be corrected to show he served honorably from 2001 to 2006, and that his time in the DEP be recorded as inactive service has been carefully considered and determined to lack merit.

2.  The evidence of record shows the applicant was convicted by a general court-martial of three specifications of violating a lawful general regulation by engaging in a relationship with a trainee not required by the training mission and three specifications of cruelty and maltreatment of subordinates by maltreating a trainee subject to his orders.  He was discharged on 24 October 2008 pursuant to the approved sentence of a general court-martial.  His trial by court-martial 
was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

3.  He provided no evidence to show his discharge is unjust or as a result of 
improper actions.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to an honorable discharge.  He was properly discharged in accordance with law and pertinent regulations with due process with no violation of his rights.

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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.  In view of the circumstances in this case, he is not entitled to an upgrade of his discharge.

5.  Periods of honorable service include the entire period of the enlistment 
contract.  Offenses that would render a period of service other than honorable 
impacts the entire period of the enlistment.  The entire period of the applicant's 
last enlistment, 11 March 2005 through 24 October 2008, is impacted as a period of service.  The current entry in item 18 of his DD Form 214 is correct; therefore, he is not entitled to have his records corrected to show he served honorably from 2001 to 2006, but it does show he served honorably from 18 July 1991 through 10 March 2005.

6.  The applicant's DEP time began after 1 January 1985 and does not qualify to be counted as inactive service.  His DEP time is correctly entered in item 18 of his DD Form 214.  

7.  The applicant's requests that his DD Form 214 be corrected to show the time he served in his MOS, his foreign service, and his 6-month deployment has been carefully considered and determined to have merit.  

	a.  His records show he served in his MOS for 16 years and 3 months; therefore, he is entitled to have his DD Form 214 corrected to show this time.

	b.  The applicant's record shows he spent 6 months and 2 days deployed to Somalia during the period 1 April 1993 - 30 September 1993.  His records show 
that his deployment to Somalia was a combat tour.  Therefore, he is entitled to have his DD Form 214 corrected to show this deployment.

	c.  Block 12f of his DD Form 214 shows he completed "0000 00 00" foreign service.  His records show he served in Korea and one deployment in Somalia.  His total foreign service time is 3 years, 4 months, and 27 days.  He is entitled to have his DD Form 214 updated to show his foreign service. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x___  ___x_____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from his DD Form 214:

* item 11:  00 years, 00
* item 12f:  "0000 00 00"

	b.  adding the following to his DD Form 214:
* Item 11:  16 years, 3 months
* Item 12f:  3 years, 4 months, 27 days
* Item 18:  "SERVICE IN SOMALIA FROM 19930401-19930930"

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* upgrading his discharge from a bad conduct discharge to an honorable discharge
* listing his service during the period 2001 to 2006 as honorable 
* adding his delayed entry program time to item 12e 



      __________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)                                         AR20110014361





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ABCMR Record of Proceedings (cont)                                         AR20110014361



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