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 members 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
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130011291
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090015646
Counsel states that the applicant served for over 19 years in the Army, that during his military service he was awarded five awards of the Army Commendation Medal and five awards of the Army Achievement Medal, and that his NCOERs show his military performance was exemplary. 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...
ARMY | BCMR | CY2012 | 20120021472
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Despite presenting numerous good character statements and having a pristine military record with no prior disciplinary actions, the military judge sentenced the applicant to the unconscionably harsh and inequitable sentence of a dismissal and 9 months confinement. The indecent assault charge is another area where it is evident the government did not believe they had a very good case.
AF | BCMR | CY2003 | BC-2003-00882
His primary ministry is to work with prisoners in confinement to show them how crime is the wrong type of life, how he was affected, how God helped him, how God still help him, and how he will help them if they let him. Because his approved sentence included a dishonorable discharge, the United States Air Force Court of Criminal Appeals reviewed the applicant’s convictions. If every time the Board did something wrong, no matter how big or small, would the Board want someone to not give the...
ARMY | BCMR | CY2004 | 040003333C070208
The applicant states he had 10 years of outstanding service and that it has been 10 years since his discharge. The applicant was deployed to Southwest Asia in support of the Persian Gulf War and was awarded an Army Commendation Medal as a result. The fact that the applicant was able to successfully continue to perform his military duties and be promoted, is evidence that he was capable of honorable service.
ARMY | BCMR | CY2006 | 20060015694
The applicant requests that his general court-martial conviction be overturned. 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. __Ann Campbell________ CHAIRPERSON INDEX CASE ID AR20060015694 SUFFIX RECON DATE BOARDED 20071002 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1.
ARMY | BCMR | CY2008 | 20080018569
The applicant requests that his discharge be changed. On 21 December 1987, the United States Army Court of Military Review affirmed the findings of guilty and the sentence, with administrative corrections of the General Court-Martial Order. The United States Army Court of Military Review affirmed the court-martial's findings of guilty and the sentence.
ARMY | BCMR | CY2009 | 20090018349
The applicant requests upgrade of his bad conduct discharge to an honorable discharge and the reason for discharge changed from court-martial, other to convenience of the government. The United States Court of Appeals for the Armed Forces found that there was a misapplication of the facts and law in the use of the applicant's confessions and communications with the chaplain and that the chaplain was given erroneous information about being required to report the applicant's abuse. As a...
ARMY | BCMR | CY2010 | 20100013343
He was discharged accordingly on 16 October 1987 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-10, as a result of a court-martial, with a dishonorable discharge. Army Regulation 635-200, paragraph 3-7b, further provided a general discharge was a separation from the Army under honorable conditions. The evidence of record shows his offenses warranted this punishment.
ARMY | BCMR | CY2004 | 20040007732C070208
The applicant requests that his dishonorable discharge be upgraded. The applicant states that he had a lot of things going on at the time and “basically turned to the wrong people for help.” He states he realizes he should have gone for drug/alcohol and marriage counseling, but believed as a noncommissioned officer “it would get around and [his] career would have been ruined.” He states as such, he tried to deal with everything by himself. Evidence available to the Board indicates that the...
ARMY | BCMR | CY2006 | 20060005630C070205
In an undated letter to the Defense Finance and Accounting Service (DFAS), the applicant stated that, in accordance with Title 10, U. S. Code, section 857, no forfeiture may extend to any pay or allowances accrued before the convening authority’s approval of a general court-martial sentence. As of 31 October 2001, the applicant had accrued 40.5 days of leave. He stated that Title 37, U. S. Code, section 501(e) [which states a member who is discharged under other than honorable conditions...