BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20140003375 


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 that his bad conduct discharge (BCD) be upgraded to an honorable or general discharge.

2.  The applicant states that his discharge does not equate to the level of his crime.  Upon his return from Iraq, his marriage started to fall apart and they separated.  During that timeframe he started to see another woman who was under the legal age.  He was charged with adultery and conduct unbecoming a Soldier and was convicted by a general court-martial and sentenced to a BCD.  He spent about 9 very good years in the military and the BCD was an over-charge for the act and only reflects a minute of his entire record of service and renders the whole of his service invalid for benefits that normal veterans could rely on.  He has apologized and paid dearly for his indiscretion and asks that the Board grant him mercy and consider upgrading his discharge.

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), Honorable Discharge Certificate, and Oath of Reenlistment.  

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.  The applicant served 4 years of active service in the U.S. Marine Corps as a mortarman and was honorably released from active duty (REFRAD) on 1 June 2002.

3.  On 9 October 2002, he enlisted in the Regular Army in the pay grade of E-4 for a period of 3 years.  He was assigned to Fort Hood, Texas and deployed to Iraq during the period 20030401 – 20040401.  He reenlisted on 7 September 2004 for a period of 4 years and a bonus with lump sum payment.

4.  On 24 January 2006, he was convicted pursuant to his pleas by a general court-martial of having carnal knowledge with a person who had attained the age of 12 but was under the age of 16 and wrongfully having sexual intercourse with an individual not his wife.  He was sentenced to confinement for 42 months, reduction to the pay grade of E-5, a forfeiture of all pay and allowances, and a BCD.  However, the convening authority approved only so much of the sentence as provided for confinement for 30 months, reduction to the pay grade of E-5, a forfeiture of all pay and allowances, and a BCD.

5.  On 11 May 2007, General Court-Martial Orders Number 129 issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Oklahoma, dated 
11 May 2007, announced that the findings and sentence as approved by the convening authority was affirmed and directed that the BCD be executed.

6.  On 17 August 2007, he was discharged pursuant to a duly affirmed court-martial sentence.  He had served 3 years, 3 months, and 15 days of his current enlistment.

7.  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.  The applicant's contentions and supporting documents have been noted; however, he did not provide sufficient evidence to warrant an upgrade of his discharge when considering the serious nature of his offenses.  

2.  The applicant's trial by court-martial was warranted due to the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the BCD appropriately characterizes the misconduct for which he was convicted.  As such, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  Additionally, 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.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is also not warranted in this case.

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 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)                                         AR20140003375



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ABCMR Record of Proceedings (cont)                                         AR20140003375



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