IN THE CASE OF:	  

		BOARD DATE:	    27 November 2012

		DOCKET NUMBER:  AR20120008782 


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 an upgrade of his bad conduct discharge.

2.  The applicant states he was court-martialed and received a bad conduct discharge.  

	a.  While he was deployed to Afghanistan from January 2007 to January 2008 he began an online relationship with a young lady via his Yahoo messenger account.  The young lady told him she was 18.  They spent several weeks talking and exchanging pictures, some of which were nude.  All of the pictures were from the neck down, there were no face shots.  Not long after they exchanged pictures he discovered that she was not 18 and stopped talking to her.

	b.  The U.S. Army Criminal Investigation Command (CID) found out about his online relationship and prosecuted him for child pornography and indecent language towards a minor.  His attorney at Fort Bragg, NC, contacted the young lady's parents who did not want him to receive a court-martial; they wanted the case dropped.  The young lady and her parents did not show up at his court-martial.  

	c.  He knows he made a mistake, everyone makes and learns from their mistakes.  Now he is married with daughters.  He is unable to find a job because he is a registered sex offender.  His wife is the only one working and they always need help from social service to pay the bills.  His family is suffering for his mistake and he doesn't want them to suffer.  He wants to make the Army a career, fight for his country, and support his family.  He is asking that his record and discharge be cleaned up so he can reenlist in the Army.

3.  The applicant provides a self-authored statement.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 October 2004 and held military occupational specialty 15Y (Armament/Electrical/Avionic Systems Repairer).

2.  His record contains a DD Form 2707 (Confinement Order), dated 10 February 2009, which shows:

* he had been assigned to B Company, 122nd Aviation Support Battalion, 82nd Combat Aviation Brigade, 82nd Airborne Division, Fort Bragg, NC
* he was being confined as a result of a general court-martial
* he was convicted of failing to obey a lawful order, enticing a minor into visual depiction, possessing child pornography, and enticing a minor into sexual activity
* his sentence was adjudged on 20 February 2009
* he was sentenced to a reduction in grade to E-1, forfeiture of all pay and allowances, confinement for 45 days, and a bad conduct discharge

3.  Orders Number 43-001, issued by Headquarters, 82nd Airborne Division, Fort Bragg, NC, on 12 February 2009, reassigned him to the U.S. Army Personnel Control Facility, Fort Knox, KY, with confinement to the U.S. Marine Corps Base Brig, Camp Lejeune, NC.  

4.  On an unknown date, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. 

5.  On 15 October 2010, the Court of Appeals for the Armed Forces denied his petition for review. 

6.  General Court-Martial Order Number 47, issued by Headquarters, U.S. Army Accessions Command, Fort Knox, KY, on 22 November 2010, stated the sentence adjudged on 10 February 2009, as promulgated in corrected copy General Court-Martial Order Number 17, has finally been affirmed.  The adjudged forfeiture of all pay and allowances was deferred on 24 February 2009 until 19 March 2009.  The automatic forfeiture of all pay and allowances was waived effective 24 February 2009 until 19 March 2009, with the direction that these funds be paid to the wife of the accused.  The sentence to confinement has been served and the bad conduct discharge will be executed.  

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from the Army on 16 February 2011 as a result of a court-martial and received a bad conduct characterization of service.  This form further shows he completed a total of 6 years, 2 months, and 12 days of creditable military service and had 36 days of lost time.

8.  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.

9.  Army Regulation 635-200 (Personnel Separations) provides for the following characterization of service: 

	a.  Paragraph 3-7a states 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 states 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.

	c.  Paragraph 3-11 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. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a general court-martial which 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 characterizes the misconduct for which he was convicted.  

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  Based on his misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20120008782





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120008782



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1