IN THE CASE OF:	  

		BOARD DATE:  29 May 2012

		DOCKET NUMBER:  AR20110024246 


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.

2.  The applicant states his discharge was inequitable because it was based on a bad decision in a short period of time during the course of his military career.  He contends that while in the Army National Guard (ARNG), his unit was required several times to be on standby because of multiple natural disasters due to inclement weather.  He continues that upon reentering active duty, he served in Bosnia, Korea, Operation Iraqi Freedom, and Operation Enduring Freedom where he attended noncommissioned officer of the month and promotion boards. He has always been dedicated professionally and placed the mission first.  He adds that his wife suffers from certain medical conditions.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the Regular Army and in the ARNG, the applicant reenlisted in the Regular Army on 26 March 1998.  He continued his service in the Regular Army through a series of reenlistments.  

2.  On 13 May 2010, he was found guilty, in accordance with his pleas, by a general court-martial of the following offenses:

	a.  Did, while in Iraq, with intent to deceive, make to Special Agent R., an official statement to wit:  that he only traded photographs of child pornography with the two individuals, which statement was false in that he traded photographs of child pornography with more than the two individuals, and was then known by him to be so false.

	b.  Did, while in Iraq, knowingly and wrongfully possessed child pornography as defined in Title 18, U.S. Code, Section 2256(8), such conduct being prejudicial to good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces.

	c.  Did, on divers occasions, while in Iraq, knowingly distributed child pornography as defined in Title 18, U.S. Code, Section 2256(8), such conduct being prejudicial to good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces.

3.  He was sentenced to reduction to the rank of private/E-1, confinement for four years, and a discharge from the service with a bad conduct discharge.  On 
12 January 2011, only so much of the sentence extending to reduction to private/E-1, confinement for 18 months, and a bad conduct discharge was approved.

4.  On 11 August 2011, the sentence having been affirmed and the provisions of Article 71c having been complied with, the bad conduct discharge was ordered to be executed.

5.  Accordingly, he was discharged on 30 September 2011 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial with a bad conduct discharge.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

7.  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.

8.  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.  

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 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's request for an upgrade of his bad conduct discharge has been carefully considered.

2.  The trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized 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.  Given the seriousness of his criminal offenses and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  His prior service accomplishments were noted; however, his record of indiscipline includes making a false official statement and possession and distribution of child pornography.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.  

5.  In view of the above, there is no basis for granting the applicant's requested relief.

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)                                         AR20110024246



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ABCMR Record of Proceedings (cont)                                         AR20110024246



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