IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140012375 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's records to show he retired effective 30 June 2002.

2.  Counsel states:

* the applicant was dishonorably discharged as a result of court-martial on 9 April 2007
* the offense alleged in the applicant's court-martial proceedings occurred on 1 May 2002
* the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received several awards and medals for his outstanding service, including the Army Good Conduct Medal (6th Award) on 2 January 1998
* the applicant reenlisted five times with his last reenlistment on 17 November 1999
* the applicant served honorably for 19 years, 10 months, and 15 days of creditable active service at the time of his fifth reenlistment
* the applicant was issued retirement orders on 30 November 2001 with an effective date of 30 June 2002
* his initial DD Form 214 (meaning his DD Form 214 Worksheet) shows 22 years, 5 months, and 29 days of creditable active service
* the applicant's retirement was rescinded on 7 December 2001 under a stop-loss order
* the applicant received several positive Noncommissioned Officer Evaluation Reports (NCOERs) demonstrating his outstanding service to the Army
* the applicant's NCOER for the period June 2000 through May 2001 had an immediate promotion recommendation and his NCOER for the period June 2001 through December 2001 named him one of the best
* the accusations forming the basis of the applicant's court-martial charges were not alleged to have occurred until 1 May 2002 and he had completed over 22 years of good, creditable service
* he was not convicted of any charges until 17 April 2003

3.  Counsel provides:

* legal brief
* DA Form 2339 (Application for Voluntary Retirement)
* DD Form 214
* DD Form 214 Worksheet
* XVIII Airborne Corps and Fort Bragg, Orders 334-0301, dated 30 November 2001
* XVIII Airborne Corps and Fort Bragg, Orders 341-0311, dated 7 December 2001
* Enlisted Record Brief (ERB)
* three DA Forms 2166-8 (NCOER)
* Honorable Discharge Certificate, dated 16 November 1999
* DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 17 November 1999
* DD Form 3286 (Statements for Enlistment), dated 17 November 1999

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 enlisted in the Regular Army on 2 January 1980.  He was promoted to sergeant first class (SFC) effective 1 October 1995.

3.  XVIII Airborne Corps and Fort Bragg, Orders 334-0301, dated 30 November 2001, show the applicant was issued retirement orders with an effective date of 30 June 2002.

4.  XVIII Airborne Corps and Fort Bragg, Orders 341-0311, dated 7 December 2001, rescinded Orders 334-0301, dated 30 November 2001, due to stop-loss under the provisions of Military Personnel Message 02-048.

5.  Headquarters, XVIII Airborne Corps and Fort Bragg, General Court-Martial Order Number 19, dated 24 September 2003, shows that while serving in the rank of SFC and pursuant to his pleas he was found guilty of:

* committing sodomy with a female under 16 years of age on or about 1 May 2002
* committing an indecent act upon a female under 16 years of age by shaving the hair in her pubic area with the intent to gratify his sexual desires on or about 1 May 2002
* committing an indecent act upon a female under 16 years of age by placing his fingers insider her vagina with the intent to gratify his sexual desires on or about 1 May 2002
* committing indecent liberties upon a female under 16 years of age by asking her "if she ever masturbated and became sexually aroused" or words to that effect, and by providing her a dildo with the intent to gratify his sexual desires on or about 1 May 2002

6.  The applicant was sentenced to a dishonorable discharge, confinement for 6 years, and reduction to the grade of E-1.

7.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, General Court-Martial Order Number 347, dated 13 December 2006, shows that, his sentence having been affirmed, the execution of his dishonorable discharge was ordered.

8.  On 9 April 2007, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV (Dishonorable and Bad Conduct Discharge).  His DD Form 214 shows he completed 23 years, 3 months, and 16 days of creditable active service.

9.  Counsel provided a legal brief and record extracts from the applicant's official military personnel file.

	a.  The applicant's DD Form 2339 shows he requested a retirement date of 17 April 2003.

	b.  The applicant's DD Form 214 Worksheet shows he had a projected retirement date of 30 June 2002 and he had 22 years, 5 months, and 29 day of creditable active service.

	c.  The applicant's three NCOERs show he was rated among the best with strong promotion recommendations.

	d.  The applicant's DD Form 4 shows his retention control point as 31 January 2002.  He acknowledged that if he were reduced in rank or became ineligible for continued service he could be further retained or separated in accordance with appropriate policies in effect at the time prescribed by the Secretary of the Army or applicable law.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable discharge or 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.

	b.  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.

	c.  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.

11.  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.

12.  On 24 September 2001, the Secretary of Defense delegated stop-loss authority to the Secretaries of Military Departments.  The stop-loss program allows the Services to retain individuals on active duty beyond their dates of separation.  Those affected by the order generally cannot retire or leave the Service as long as Reserves are called to active duty or until relieved by the President, whichever is earlier.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support counsel's request for the applicant's retirement.

2.  The applicant was convicted of sodomy, indecent acts, and taking indecent liberties with a minor.  His conviction and sentence by a general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted.  He was not issued a dishonorable discharge until after his conviction and sentence had been reviewed and affirmed.

4.  Although counsel provided a copy of the applicant's DD Form 214 Worksheet and retirement orders, the applicant's retirement orders were revoked under the stop-loss policy in effect at the time.  The applicant's DD Form 214 Worksheet showed what his discharge would have been had he retired as initially projected.

5.  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 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)                                         AR20140012375



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ABCMR Record of Proceedings (cont)                                         AR20140012375



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