IN THE CASE OF:	

		BOARD DATE:	    23 January 2014

		DOCKET NUMBER:  AR20130006647 


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:

	a.  His general court-martial conviction be overturned.

	b.  That all records which indicate he has served in the Army be expunged.

2.  The applicant states, in effect:

	a.  In 2003, it was extremely hard fighting and defending himself against his command and the Army from jail.  He felt so helpless and ashamed.  The only post-traumatic stress disorder that he suffers from involves the military incidents.

	b.  Today, he is a social worker and he serves his community.  He graduated with a Bachelor of Arts degree in Social Work in 2013 and he wants to apply for the Masters of Social Work program at his school.  He has a great chance of getting in the program, but not with a bad conduct discharge which involved a court-martial, sodomy charge, and being absent without leave (AWOL). 
 
	c.  His Federal Bureau of Investigation (FBI) records show a "not guilty" verdict for the sodomy charge, but a charge of "guilty with lesser-included offense of indecent acts."  None of this is true.  As he has always stated, he and his roommate were drinking all night and he was in a drunken blackout when he returned to the barracks.  He thought his roommate was his fiancé and he pulled down his roommate's pants and after a few seconds his roommate awoke and he immediately stopped and apologized.  His fiancé had been staying with him in his barracks room prior to this incident.

	d.  Before enlisting in the Army in 2003, he was honorably discharged from the U.S. Marine Corps in 2001.  He only enlisted in the Army to get into the Special Forces, but his commanding officer would not sign off on the Special Forces orders.  

	e.  In 2003, a friend was shot during a night fire training incident.  He told investigators that he did not think they should have been out there that night and everyone got reprimanded but him.  His command found out what he said and immediately began to show hatred towards him.    

	f.  The only thing he was guilty of was going AWOL twice and pulling down his roommate's pants.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) from the U.S. Marine Corps
* U.S. Army Court of Criminal Appeals notice of correction
* General Court-Martial order
* Original FBI identification record
* Revised FBI identification record
* Diploma
* Certificate of training

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.  Having prior active service in the U.S. Marine Corps, the applicant's enlistment contract shows he enlisted in the Regular Army (RA) on 30 October 2002 for a period of 3 years in pay grade E-4.  

3.  On 18 December 2003, he was convicted by a general court-martial of:

* being AWOL from 2 April  to 16 April 2003 and from 24 April to 14 July 2003
* violating a lawful general order (cohabitating with girlfriend in barracks)
* indecent acts
* disobeying a lawful order  

4.  He was sentenced to a forfeiture of all pay and allowances, to be confined for 6 months, reduction to pay grade E-1, and to be discharged with a bad conduct discharge.  On 10 June 2004, the convening authority approved the sentence.

5.  On 12 October 2005, the U.S. Army Court of Criminal Appeals corrected his general court-martial order by:

	a.  deleting the words "Company D" and substituting the words "Company C" in the arraignment paragraph; and

	b.  deleting the word "regulation" and substituting the word "order" in charge II.

6.  On 18 May 2006, the convening authority ordered the bad conduct discharge duly executed.  

7.  His DD Form 214 is not available.  

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.

DISCUSSION AND CONCLUSIONS:

1.  By law, this Board cannot disturb the finality of a court-martial conviction, and the applicant has not established a basis for granting clemency.  Therefore, there is no basis for granting the applicant’s request to overturn his general court-martial conviction.

2.  The applicant requests the Army expunge any record that shows he was ever in the Army.  However, the evidence shows he was in the Army.  His enlistment contract shows he enlisted in the RA on 30 October 2002.    

3.  In view of the foregoing, 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)                                         AR20130006647



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ABCMR Record of Proceedings (cont)                                         AR20130006647



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