IN THE CASE OF:	  

		BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120018427 


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 upgrade of his dishonorable discharge to general under honorable conditions.  He further requests that if his upgrade of discharge is denied, his name be removed from the sex offender registry.

2.  He states his average conduct and efficiency ratings, behavior, and proficiency marks were good.  He adds that he received awards, decorations, and promotions which show he was a good service member.  He says he has been a good citizen since his discharge and clemency is warranted because it is an injustice for him to suffer the adverse consequences of a bad discharge.  He maintains that he took responsibility for his actions and realizes what he did was wrong, but all the blame should not fall on him.  He maintains that he did not force the victims to have unprotected intercourse with him knowing he was HIV positive.  

3.  He provides a self-authored statement.

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.  The applicant has requested that his name be removed from the sex offender registry.  The sex offender registry is not in the purview of the ABCMR.  Therefore, his request to have his name removed from this registry will not be discussed any further.

3.  The applicant enlisted in the Regular Army on 4 March 1987.  He completed training and was awarded military occupational specialty 31U (Signal Support Systems Specialist).

4.  His records show he was awarded the:

* Army Good Conduct Medal (3rd Award)
* National Defense Service Medal
* Army Achievement Medal
* Armed Forces Expeditionary Medal
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon
* Joint Military Unit Award

5.  His records further show he was promoted through the ranks to sergeant/E-5. He served a 48-month tour in Germany, 2 months in Somalia, and a 12-month tour in Korea. 

6.  General Court-Martial Order Number 33, dated 9 October 1997, shows he was found guilty of the following charges:

* three specifications of assault by having unlawful sexual intercourse while knowingly infected with HIV
* three specifications of willfully disobeying a lawful command from a superior commissioned officer
* three specifications of adultery
* two specifications of sodomy

7.  The court sentenced him to reduction to the grade of private/E-1, a forfeiture of all pay and allowances, confinement for 10 years, and a dishonorable discharge.

8.  On 5 August 1997, the sentence was approved and except for the part of the sentence extending to a dishonorable discharge, was ordered to be executed, but the execution of that part of the sentence extending to confinement in excess of (6) years was suspended for 2 years.

9..  On 5 March 1999, the sentence to a dishonorable discharge, reduction to the grade of private/E-1, a forfeiture of all pay and allowances, and confinement for 10 years (confinement in excess of 6 years was suspended for two years with provisions for automatic remission) was affirmed by the U.S. Army Court of Military Review.

10.  The applicant was discharged from the Army on 2 April 1999.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a dishonorable discharge.  He had completed a total of 10 years, 1 month, and 27 days of creditable military service. He had lost time from 1 May 1997 to 11 August 1998 and 12 August 1998 to 
2 April 1999.

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.

12.  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.  

13.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because of his achievements and conduct while on active duty and his good citizenship after discharge was considered.  However, his achievements prior to his discharge are not sufficient justification to upgrade his discharge.  Additionally, good post-service conduct is not a basis for upgrading his discharge.  He must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

2.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  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.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

4.  In view of the above, he is not entitled to the relief requested.

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)                                         AR20120018427





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ABCMR Record of Proceedings (cont)                                         AR20120018427



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