IN THE CASE OF:
BOARD DATE: 2 October 2012
DOCKET NUMBER: AR20120006801
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 upgraded.
2. The applicant states his discharge is unjust because he feels the punishment is far too severe for the offense. He did not willingly download the child pornography on his computer. He realizes he should not have downloaded any pornography but he was not aware what came with it. He was told he could receive up to 25 years in prison and was very scared. He pled guilty to having pornography on his computer which was a military crime and he should have been punished. He was punished with 4 months in prison, demotion, and a bad conduct discharge which puts him in the same class as murderers, thieves, rapist, and other more serious offenders.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and 15 statements of support.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he enlisted in the Regular Army on 3 July 2008 in the rank/grade of private (PVT)/E-1 and he held military occupational specialty 25B (Information Technology Specialist). He was promoted to private first class on 1 September 2009.
2. On 7 September 2009, he was assigned to C Company, 209th Aviation Support Battalion, 25th Combat Aviation Brigade, Wheeler Army Air Base, HI. On 8 September 2009, he deployed with his unit to Iraq.
3. On 27 April 2010, he pled guilty to and was convicted by a general court-martial of one specification each of:
* knowingly and wrongfully possessing a computer containing 26 image and five video files of child pornography on or about 4 December 2009
* knowingly and wrongfully possessing an external hard drive containing four video files of child pornography on or about 4 December 2009
4. He was sentenced to 4 months confinement, reduction to PVT/E-1, and a bad conduct discharge.
5. On 4 August 2010, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed.
6. Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 79, dated 26 April 2011, shows the applicant's sentence having been affirmed and complied with, the convening authority ordered his bad conduct discharge executed.
7. On 31 August 2011, he was discharged from the Army. His DD Form 214 shows he was discharged as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Separations), chapter 3, with a bad conduct characterization of service. He completed 2 years, 10 months, and 22 days of active service with 98 days of time lost due to confinement.
8. The applicant provides:
* fourteen statements of support from his trial record, two undated and 12 dated between 21 and 26 April 2010, wherein friends, former teachers and employers, his pastor, and acquaintances all stated the applicant was kind, quiet, honest, and a nice person
* a statement of support, dated 29 March 2012, from his father to several senators and military leaders, wherein his father stated he was not offering an excuse for what happened, but he felt the sentence was too harsh and his son should have received a general discharge
9. Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel. 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.
10. 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.
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 Army Board for Correction of Military Records (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 evidence of record shows the applicant, a computer specialist, pled guilty to and was convicted of knowingly possessing child pornography on his computer. His trial by a general court-martial was warranted by the gravity of the offenses charged. His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.
2. By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited. The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.
3. After a review of his record of service, it is clear that his service did not meet the criteria for an honorable or a general discharge or any characterization of service other than the one he received. Therefore, he is not entitled to the 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) AR20120006801
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ABCMR Record of Proceedings (cont) AR20120006801
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