BOARD DATE: 16 May 2013
DOCKET NUMBER: AR20120019236
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 dishonorable discharge.
2. He submits no additional statements.
3. He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 31 August 1994 and he continued to serve on active duty through three reenlistments. He was promoted to sergeant first class on 1 November 2006.
2. On 18 September 2007, he was convicted by a general court-martial of the following offenses:
* wrongfully engaging in an illegal association with a specialist (SPC) and a private first class (PFC), female Soldiers in training
* making false official statements to a special agent in the U.S. Army Criminal Investigation Command
* wrongfully having sexual intercourse with a SPC and a PFC
3. He was sentenced to be reduced to private/E-1, confinement for three years, and to be discharged with a dishonorable discharge.
4. On 11 July 2008, the court-martial authority approved the sentence except for the portion of the sentence extending to a dishonorable discharge. The reduction of rank and automatic forfeiture of all pay and allowances were deferred, effective 27 September 2007. The automatic forfeiture of all pay and allowances required by Article 58b, Uniform Code of Military Justice, was waived effective this date for a period of six months so that these funds would be paid to the applicant's wife.
5. On 21 July 2009, he was granted parole for the period 18 September 2009 to 16 September 2010.
6. The U.S. Army Court of Military Reviews affirmation of the findings of guilty and the sentence is not available.
7. On 23 July 2009, the dishonorable discharge was ordered to be executed.
8. He was discharged on 22 January 2010 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 3-10, as a result of court-martial with issuance of a dishonorable discharge. He completed 13 years and 16 days of creditable active service with approximately 850 days of lost time.
9. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.
a. 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.
b. 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.
c. Paragraph 3-10 states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
10. 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 was convicted by a general court-martial of wrongfully engaging in an illegal association with a SPC and PFC, making false official statements, and wrongfully having sexual intercourse with these two Soldiers. As a result, he was sentenced to be discharged with a dishonorable discharge.
2. His trial by court-martial was warranted by the gravity of the offenses charged. 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.
3. Based on the seriousness of the misconduct for which the applicant was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, there is no basis for granting 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) AR20120019290
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ABCMR Record of Proceedings (cont) AR20120019236
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