IN THE CASE OF:	 

		BOARD DATE:	  24 April 2014

		DOCKET NUMBER:  AR20130014712 


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 reconsideration of his earlier request for an upgrade of his bad conduct discharge. 

2.  The applicant states:

* he received a bad conduct discharge due to his sexual orientation and his secret clearance was taken away from him
* he was convicted by a court-martial of what was determined to be consensual sex; the military determined he was homosexual and thereby he was discharged by discrimination 
* since the "Don't Ask, Don't Tell (DADT)" policy has been finally repealed, the injustice should now be corrected
* since his discharge he has not given in to the hardship caused by this discharge; an upgrade would provide him with opportunities
* his discharge is inequitable because it was based on one isolated incident in 6 years with no other adverse action
* his discharge should be upgraded because if a heterosexual individual engaged in the same sexual activity, the action is not be called sodomy
* his discharge should be upgraded because his military service was honorable and his civilian character is also honorable
* he is a model to others and he displays a strong ethical character by educating men and women that hate and bigotry keep people divided
* his discharge should be upgraded because of his outstanding military history as a whole and not just one incident

3.  The applicant provides:

* Multiple character reference letters
* Multiple post-service certificates of achievement
* Multiple transcripts and correspondence in relation to an insurance program
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* Letter from a veteran service representative
* State licensed agent insurance license

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2003093352, on 27 April 2004. 

2.  The applicant does not meet the two-tiered criteria for reconsideration in that his request is neither submitted within one year of the original decision nor does it contain any new evidence.  However, the applicant bases his current application on the repeal of DADT, dated September 2011.  Since the repeal of DADT occurred long after the one-year window for the applicant to request reconsideration, the Board will reconsider his request.

3.  The applicant's records show he enlisted in the Regular Army on 1 September 1988 and he held military occupational specialty 74B (Information Systems Operator/Analyst).  He reenlisted on 3 February 1994 and he was promoted to sergeant/E-5 on 1 September 1994.  

4.  He was awarded or authorized the Army Service Ribbon, National Defense Service Medal, Army Good Conduct Medal (2nd Award), Overseas Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Expert Marksmanship Qualification Badge with Grenade Bar, Army Achievement Medal (2nd Award), Noncommissioned Officer Professional Development Ribbon with Numeral 2, and French Commando Badge. 

5.  On 15 June 1995, the applicant was arraigned at Fort Irwin, CA, on the following offenses at a general court-martial convened by the Commander, National Training Center and Fort Irwin.  The Record of Trial shows he was convicted as follows:

	a.  Charge I:  Article 121.  Plea: Not Guilty. Finding: Not Guilty.  Specification: Larceny, of a value less than $100.00 on or about 21 or 22 October 1994.  Plea: Not Guilty.  Finding: Not Guilty.

	b.  Charge II: Article 125.  Plea: Not Guilty.  Finding: Not Guilty, but guilty of consensual sodomy.  Specification: Commit forcible sodomy on or about 21 or 22 October 1994.  Plea: Not Guilty. Finding: Not Guilty, but guilty of consensual sodomy. 

	c.  Charge III: Article 129.  Plea: Not Guilty. Finding: Not Guilty.  Specification: Unlawfully break and enter on or about 21 or 22 October 1994.  Plea: Not Guilty. Finding: Not Guilty.

	d.  Charge IV: Article 130.  Plea: Not Guilty.  Finding: Not Guilty.  Specification: Unlawfully enter a dwelling, with intent to commit a criminal offense, to wit: sodomy, or an indecent assault, or indecent acts upon Private R----t H--ll, on or about 21 or 22 October 1994.  Plea: Not Guilty. Finding: Not Guilty.

	e.  Charge V: Article 134.  Plea: Not Guilty. Finding: Not Guilty, but guilty of indecent acts with another.  Specification: Commit an indecent assault upon  Private R----t H--ll, on or about 21 or 22 October 1994.  Plea: Not Guilty.  Finding: Not Guilty, but guilty of indecent acts with another.

6.  The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, and a bad conduct discharge. 

7.  On 30 November 1995, the convening authority approved only so much of the sentence as provided for forfeiture of $569.00 pay per month for 2 months, reduction to the lowest enlisted grade, and a bad conduct discharge, and except for the bad conduct discharge he ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

8.  On 10 February 1997, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

9.  He was discharged on 10 February 1997.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of a court-martial in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, with a bad conduct discharge.  This form further shows he completed 6 years, 5 months, and 10 days of creditable active service. 

10.  Headquarters, National Training Center and Fort Irwin, CA, General Court-Martial Order Number 4, dated 4 September 2001, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

11.  He provides: 

	a.  Multiple character reference letters from various individuals attesting to his character and fine qualities.  The authors describe him as a person with an excellent moral character, high integrity, and a strong level of responsibility. 

	b.  Multiple post-service certificates of achievement and multiple transcripts and correspondence in relation to an insurance program and a state licensed insurance agent license.

	c.  VA Form 21-4138, dated 1 August 2013, wherein he states he was the Soldier of the Year in the 1991-1992 timeframe while he was in Germany. 

	d.  A letter, dated 1 August 2013, from a veteran service representative supporting the discharge upgrade. 

12.  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.

13.  Army Regulation 635-200 sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons.

	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.  Section IV (Dishonorable and bad conduct discharge):

		(1)  paragraph 3-10(a) (Dishonorable Discharge): 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.  

		(2)  Paragraph 3-10(b) (Bad Conduct Discharge): 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. 

	d.  Chapter 15 at the time prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation was homosexuality, a discharge under other than honorable conditions could be issued only if such characterization was otherwise warranted and if there was a finding that during the current term of service the Soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other Soldiers of the Armed Forces.  In all other cases, the type of discharge would reflect the character of the Soldier’s service.

14.  The DADT policy was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members about their sexual orientation.  Under that policy, service members could be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex.

15.  Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under DADT or prior policies.  The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the narrative reason for discharge (the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code JFF)); the characterization of the discharge to honorable; and the RE code to an immediately-eligible-to-reenter category.

16.  For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met:

* the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT
* there were no aggravating factors in the record, such as misconduct

17.  The memorandum further states that although each request must be evaluated on a case-by-case basis, the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors.

18.  The memorandum also recognized that although BCM/NRs have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRBs, it is DOD policy that broad, retroactive corrections of records from applicants discharged under DADT [or prior policies] are not warranted.  Although DADT is repealed effective 20 September 2011, it was the law and reflected the view of Congress during the period it was the law.  Similarly, DOD regulations implementing various aspects of DADT [or prior policies] were valid regulations during those same or prior periods.  Thus, the issuance of a discharge under DADT [or prior policies] should not by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial of sodomy and indecent acts in violation of Articles 125 and 134 of the UCMJ.  His approved sentence was a bad conduct discharge, reduction to E-1, and a forfeiture of $569.00 pay per month for 2 months. 

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence was ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this 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.

4.  With respect to his argument: 

	a.  The applicant's discharge was not based solely on DADT or a similar policy in place prior to enactment of DADT; his discharge was a result of a court-martial conviction.  His contention that he received a bad conduct discharge due to his sexual orientation is inaccurate.  The repeal of DADT is not applicable in the applicant's case because he was not discharged due to his sexual orientation under DADT or any similar policy. 

	b.  The applicant was not administratively discharged; he was discharged as a result of a general court-martial.  Under the old policy, service members may be investigated and administratively discharged.  Separation by sentence of a general or special court–martial is not an administrative separation.  It is a punitive discharge.  His contention that he was discharged by discrimination is inaccurate.  

	c.  Most importantly is the fact that there were aggravating factors involved in the applicant's case.  He was an NCO while his victim was a lower grade enlisted Soldier.  Even without said conviction, his conduct itself was unbecoming an NCO.  His conduct was determined by the court, under all the circumstances, to be egregious enough to warrant a bad conduct discharge. 

	d.  His post-service achievements are noted.  However, they do not negate the fact that he was convicted by a court-martial.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this Board is not empowered to set aside a conviction.

5.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  He is not entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AR2003093352, dated 27 April 2004. 



      _______ _  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)                                         AR20130014712



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ABCMR Record of Proceedings (cont)                                         AR20130014712



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