IN THE CASE OF:	   

		BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20140003895 


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 correction of his military records by changing his bad conduct discharge (BCD) to uncharacterized and changing the reason for his separation.

2.  The applicant states, in effect, that he was assigned to the 55th Military Police Company, 94th Military Police Battalion, 2d Infantry Division located in the Republic of Korea.  On 12 February 2010, a special court-martial convicted him of indecent acts and dereliction in the performance of his duties. He was sentenced to reduction to Private, pay grade E1; confinement for 90 days; and to a BCD.  He understands that what he did was wrong and in violation of the Uniform Code of Military Justice (UCMJ).  He has spent the last 4 years reflecting on his failure.  Having suffered the ramifications of his discharge and his inability to obtain employment in the civilian sector, he has run out of lawful ways to earn an income to support his family.  He understands it is asking a lot, but he requests the Board allow him the opportunity to redeem himself.  This is the only time he ever caused trouble.  It can be proven that his crime was an isolated incident.  He has an otherwise clean record.  He failed the military and himself and agrees he deserved punishment.  However, he feels it should have been nonjudicial punishment (NJP) with loss of pay and rank, not a court-martial that has destroyed his life.  He has significant emergency medical service (EMS) and law enforcement training and has had many job offers to include fast food restaurants.  But they have been withdrawn because of his military discharge, not because of the crimes committed.  He voluntarily joined the military and now has no future because of it.

3.  The applicant provides copies of:

* DA Form 4430 (Department of the Army Report of Result of Trial), corrected copy
* Certification Card, Emergency Medical Technician, State of Maryland, effective 1 July 2013
* Concealed Firearms Permit, State of Maryland, issued 6 August 2013
* Letter, County of Cumberland, Maine, dated 15 November 2013
* Email communication, Pratt and Whitney, dated 8 January 2014
* Email communication, Mobile Health Medics, dated 21 January 2014
* Email communication, Maine Medical Center, dated 29 January 2014
* Email communication, Sears Logistics Services, LLC, dated 29 January 2014

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 AR20120013866, on 12 February 2013.

2.  The applicant has provided new documentary evidence and different argument that now requires consideration by the Board.

3.  The original ROP shows that the Board considered the applicant's request for an upgrade of his BCD to a general, under honorable conditions discharge.

	a.  The applicant had argued that he had pled guilty to two misdemeanor charges.  He was advised that a BCD would be placed on the table but that due to the nature of the transgressions, there was no way it would be used.  He also argued that he should have received NJP that would have provided a lesser punishment.  He contended that he only had one negative incident with law enforcement.

	b.  A special court-martial convicted the applicant of engaging in sexual intercourse in the barracks with a female civilian while a minor child was in the room witnessing the act.  He was also convicted of willful dereliction in the performance of his duties by having in his barracks room non-military visitors under the age of 18, not members of his immediate family and unaccompanied by a parent or legal guardian.

	c.  The Board noted that the applicant was a military policeman.  It also determined that the charges warranted trial by a court-martial and that the resulting sentence was in accordance with the applicable law and regulations.

4.  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.

5.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Chapter 11 provides that a member will be given a BCD pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed.

6.  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.  

7.  A review of the documents provided by the applicant shows that:

	a.  he has a concealed firearms permit for the State of Maine;

	b.  he is a certified emergency medical technician in the State of Maryland; and

	c.  he has applied for the following employment without acceptance:

* Corrections officer, Cumberland County Sheriff's Office
* Protective Services Specialist, Pratt and Whitney, United Technologies Corporation
* Emergency Medical Technician, North East Mobile Health Services
* Security Officer, Maine Medical Center
* Loss Prevention Associate, Sears Logistics Services, LLC

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by changing his BCD to uncharacterized and changing the reason for his separation because his crime was an isolated incident and he has an otherwise clean record.

2.  The applicant's trial by court-martial was warranted by 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.

3.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

4.  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.  Given the seriousness of the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.

5.  The applicant was a military policeman and should have known, better than most other Soldiers, the consequences of his behavior; particularly, when it involved a minor child.

6.  The applicant argues that he has no future because he joined the military and received a BCD.  More to the point, his future prospects are the result of his willful and unacceptable criminal acts.

7.  The applicant's difficulty in obtaining civilian employment is not an appropriate basis for clemency in his case or for an upgrade of his discharge.

8.  In view of the above, the applicant request should be denied.

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 AR20120013866, dated 12 February 2013.




      ____________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)                                         AR20140003895





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ABCMR Record of Proceedings (cont)                                         AR20140003895



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