IN THE CASE OF:	  

		BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130011291 


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 honorable.

2.  He states the upgrade is requested because the findings of guilty by a court-martial were based on a speech that transpired between his wife and himself.  The conviction was obtained in violation of his constitutional rights, to include the First, Fifth, and Sixth Amendments -- freedom of speech, due process and the right to a fair trial, respectively.  His speech was not a crime and no other crime was asserted.  Prior to this event, he was a model Soldier with numerous certificates, awards, and promotions and no adverse actions against him.  However, he started drinking on and off duty and during these binges, he exercised a lack of judgment.  Certain inappropriate events transpired between himself and his step-daughter.  The incidents that led up to his discharge have an element of entrapment.  Since those events, he has dealt with his alcoholism, has changed for the better, and he is ready to establish himself as an outstanding citizen. 

3.  He provides:

* Self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlistment/Reenlistment Documents
* DD Form 398-2 (National Agency Questionnaire)
* DA Forms 1059 (Service School Academic Evaluation Report)
* Army Good Conduct Medal Orders
* Promotion Orders
* Military Justice Case on Freedom of Speech titled "United States versus Wilcox"

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 October 1994.  The highest rank/pay grade he attained while serving on active duty was staff sergeant (SSG)/E-6.  

2.  General Court-Martial Order Number 3 published by Headquarters, I Corps, dated 26 February 2009, shows he plead guilty and was found guilty at a general court-martial of two specifications of violation of Article 134 of the Uniform Code for Military Justice (UCMJ), committing indecent acts upon a female under the age of 16 years.

3.  The approved sentence was confinement for 8 years and a dishonorable discharge.  

4.  On 18 June 2008, the sentence was approved and, except for the part of the sentence as provided for confinement for 8 years and extending to a dishonorable discharge, was ordered to be executed.  The applicant was credited with 156 days of confinement credit against the sentence to confinement.

5.  On 16 December 2009, the sentence to confinement for 8 years and a dishonorable discharge was affirmed.  

6.  The applicant's record is void of the transcript of his court-martial trial and/or the circumstances concerning his plea of guilty and the subsequent finding of guilty on the two specifications of Article 134 of the UCMJ, committing indecent acts upon a female under the age of 16 years of age.

7.  The applicant was discharged from the Army on 30 April 2010.  His DD Form 214 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 13 years, 7 month, and 22 days of creditable military service.  He had lost time from 18 June 2008 to 30 April 2010. This form also shows he was awarded the:

* Army Achievement Medal (2nd Award)
* Army Good Conduct Medal (4th Award)
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Kosovo Campaign Medal
* Korea Defense Service Medal (2nd Award)
* Iraq Campaign Medal with campaign star
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)

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 sets forth the basic authority for the 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.  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.  

   c.  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.  There is no evidence and the applicant has not provided any to show that his rights were violated and that his discharge was based on "entrapment."  Further, the military justice case provided by him to substantiate his claim is a complete different scenario than this case, and as such has no bearing on his requested action.

2.  The evidence shows that his trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations. 
3.  The available evidence failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated and his discharge upgraded.

4.  Additionally, the fact that he has received numerous certificates and awards, and attained the rank of SSG is commendable.  However, his achievements prior to his discharge are not sufficient justification to upgrade his discharge.  Additionally, good post-service conduct is not normally a basis for upgrading his discharge.  

5.  Therefore, there is no basis for granting his 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)                                         AR20130011291





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ABCMR Record of Proceedings (cont)                                         AR20130011291



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