IN THE CASE OF:	  

		BOARD DATE:  11 February 2014

		DOCKET NUMBER:  AR20130009952 


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 (BCD) and a change of his punitive discharge to an administrative discharge.

2.  The applicant states that members of his former command, as well as the presiding judge on the Article 32 board, all recommended an administrative discharge in his case.  He adds that a United States Supreme Court case (Lawrence v. Texas, 2003) pertains to Article 125 (Sodomy), Manual for Courts-Martial, and the decision in that case rendered Article 125 null and void.

3.  The applicant provides the following documents in support of his request:

* 19 documents of military records designated as "Good Soldier Packet"
* 14 documents related to his request for administrative discharge/clemency

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.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) and National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) show the applicant had prior honorable enlisted service in the Regular Army (RA) from 26 August 1986 through 3 December 1991 and in the Army National Guard (ARNG) of the United States and Maryland ARNG from 
14 October 1992 through 30 June 1995.

3.  The applicant enlisted in the RA on 18 June 1997 for a period of 3 years.   He then reenlisted in the RA on 5 May 1999 for a period of 4 years.

4.  In April 2002, the applicant was convicted at a general court-martial (GCM) of, on 9 January 2002:

* failing to go at the time prescribed to his appointed place of duty
* making a false statement
* committing sodomy

   a.  On 4 April 2002, he was sentenced to reduction to private (E-1), forfeiture of all pay and allowances, confinement for 4 months, and a BCD.

   b.  On 15 August 2002, the GCM convening authority (GCMCA) approved the sentence and, except for the part of the sentence extending to the BCD, ordered the sentence duly executed.

5.  U.S. Army Court of Criminal Appeals, Decision, dated 20 September 2005, shows that on consideration of the entire record, including the issues personally specified by the applicant, the Court found the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the findings of guilty and the sentence were affirmed.

6.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 71, dated 6 April 2006, confirmed the applicant's court-martial sentence was affirmed  (that portion of the sentence pertaining to confinement had been served).  The provisions of Article 71(c) having been complied with, the sentence of a BCD was ordered duly executed.

7.  A DD Form 214 shows the applicant was discharged with a BCD on 7 July 2006 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial (other).

   a.  He had completed 8 years, 9 months, and 12 days of net active service.
   
   b.  He had time lost under Title 10, U.S. Code, section 972, from 4 April 2002 through 11 July 2002.

   c.  Item 18 (Remarks) shows he had continuous honorable active service from 18 June 1997 through 4 May 1999.

8.  In support of his application the applicant provides the following documents:

   a.  19 certificates, citations, orders, forms, and letters that document the applicant's military service from 1 November 1986 to 6 April 2001.

   b.  A letter written by Major General Geoffrey C. L----, Commander, U.S. Army Special Forces Command (Airborne), Fort Bragg, NC, dated 12 February 2002, who acknowledged that he knew the applicant's father (the late Sergeant Major H---) and his family.  Based on the family's circumstances, he offered his support in resolving the applicant's case by administrative means in lieu of trial by court-martial.

   c.  DD Form 457 (Investigating Officer's Report), dated 25 February 2002, that shows the investigating officer recommended the applicant for trial by special court-martial based on his finding on Charge III (Sodomy).

   d.  Stipulation of Expected Testimony of Sergeant First Class Robert A. W---, undated, that shows he would testify that he knew the applicant since September 1997, he was an excellent Soldier and family man, and that the incident is out of character for him.  He indicated the applicant had the potential for rehabilitation.

   e.  Two memoranda, dated 14 and 18 March 2002, that show the applicant's immediate and intermediate commanders recommended approval of the applicant's request for reconsideration of discharge in lieu of trial by court-martial with an under other than honorable conditions discharge.

   f.  A letter written by First Sergeant Charles R. A---, Jr., Troop First Sergeant, dated 2 April 2002, on behalf of the applicant and his quest to continue his military service.  The first sergeant attested to the applicant's technical and tactical knowledge, dedication to duty, and expertise as a noncommissioned officer.

   g.  A Report of Result of Trial that provides a summary of offenses, pleas, and findings of the applicant's trial by GCM on 20 March and 4 April 2002.


    	(1)  It shows he pled guilty and was found guilty of:

* Article 86 (Failure to report)
* Article 107 (Making a false statement)
* Article 125 (Sodomy)

    	(2)  It also shows he was sentenced to be reduced to the grade of private (E-1), to forfeit all pay and allowances, confinement for 4 months, and a BCD.

   h.  On 17 May 2002, the applicant submitted a statement to General Steven W---, the GCMCA.  He explained the events and actions that led to his conviction under the GCM proceedings.  He asked that the sentence be reduced and the discharge be upgraded to reflect his many years of honorable service.

   i.  On 20 June 2002, Colonel Samuel J. R---, Staff Judge Advocate (SJA), Fort Knox, KY, provided his recommendation in the GCM of the applicant.  He recommended that the GCMCA approve the sentence as adjudged and that all punishments, except the BCD, be ordered executed.

   j.  On 29 July 2002, the applicant consulted with legal counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

   k.  On 29 July 2002, Captain Erika A. M---, Trial Defense Counsel, submitted a request for clemency on behalf of the applicant.  She asked the GCMCA to accept the applicant's post-trial request for an administrative discharge or, in the alternative, disapproval of the adjudged BCD.

   l.  On 2 August 2002, Lieutenant Colonel Brian C. C---, Acting SJA, provided the GCMCA an addendum to the SJA recommendation in the GCM of the applicant.  It included a summary of the applicant's case, counsel's request for clemency in the applicant's case and consideration of an administrative discharge under the provision of Army Regulation 635-200, chapter 10 or chapter 14 (Misconduct), and also matters for consideration submitted by and on behalf of the applicant.  He recommended the GCMCA approve the sentence and, except the part of the sentence extending to the BCD, that it be ordered executed.

   m.  On 15 August 2002, the GCMCA disapproved the applicant's request for post-trial discharge under the provisions of Army Regulation 635-200, chapter 10.


9.  Lawrence et al v. Texas, was decided by the United States Supreme Court on 26 June 2003.  The Supreme Court rendered Article 125 (Sodomy) in the Manual for Courts-Martial null and void.

10.  Manual for Courts-Martial (MCM), United States (2012 Edition), Part IV (Punitive Articles), lists Article 125 (Sodomy).

11.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3, 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.  Chapter 3, 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.  Chapter 3, paragraph 3-11, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of the appellate review and after such affirmed sentence had been ordered duly executed.

   d.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   e.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his BCD should be changed to an administrative discharge and the character of his service should be upgraded because he had many years of prior honorable service, members of his former chain of command supported an administrative discharge in his case, and the United States Supreme Court case (Lawrence et al v. Texas, 2003) rendered Article 125, MCM, null and void.

2.  Records show that two DD Forms 214 and one NGB Form 22 document the applicant's prior honorable enlisted service, as follows:

* in the RA from 26 August 1986 through 3 December 1991
* in the ARNG from 14 October 1992 through 30 June 1995
* in the RA from 18 June 1997 through 4 May 1999

3.  The applicant's contentions that members of his former chain of command supported an administrative discharge in his case is noted.

   a.  The evidence of record shows the applicant's request for administrative discharge in lieu of trial by court-martial, along with the recommendations of his former chain of command, was presented to the GCMCA for consideration.  However, he disapproved the request.

   b.  The applicant provides no new evidence regarding this matter.

   c.  Therefore, based on the evidence of record, there is an insufficient basis for granting the applicant's request for an administrative discharge.

4.  The evidence of record shows the United States Supreme Court decision in Lawrence et al v. Texas was decided prior to appellate review in his case was completed.  Thus, the Supreme Court decision was available for the military appellate system.  However, there is no evidence the decision applied to Article 125 of the MCM.  In fact, the MCM (2012 Edition) lists Article 125 as a punitive article.  Thus, the applicant's contention that Article 125 is null and void is not supported by the evidence of record.

5.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the applicant's appeal.

6.  The evidence of record shows that during the period of service under review the applicant was convicted of a serious offense at a GCM and he had a total of 99 days of time lost in confinement.  Thus, the applicant's character of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge to either an honorable or general discharge.

7.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

8.  Based on the evidence of record, it is concluded that the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130009952



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ABCMR Record of Proceedings (cont)                                         AR20130009952



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