IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20140020154 


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 his bad conduct discharge (BCD) be upgraded.

2.  The applicant states:

     a.  His conviction and discharge were inequitable because they were based on his pre-service civilian conviction that was properly listed in his enlistment documents.

     b.  His request is not for his personal benefit but for the support of his children.  By granting his upgrade he would be afforded the opportunity to support his family financially.

     c.  He is fully aware of the consequences of his poor decisions.  He is very remorseful and wants to apologize to the Army, his family, and most importantly the women he hurt.  

     d.  He takes pride in how he carries himself and he is very regretful for his actions.  People of character do the right thing not because they think it would change the world but because they refuse to be changed by the world.

     e.  Character takes courage.  Courage is not freedom from fear but freedom from being frozen by it.  You cannot change mistakes that you have made but you can learn from them and by doing so you can discover the true worth of having good character.   

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his General Court-Martial Order (GCMO).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 October 2008.  He completed training and was awarded military occupational specialty 92A (Automated Logistical).  The highest rank he attained was sergeant.

2.  GCMO Number 20, issued by Headquarters, Fort Campbell, Fort Campbell, KY, dated 5 September 2013 shows that based on a plea agreement he was found guilty of:

* maltreating Specialist D.W. on or about 15 February 2012 and on or about 1 April 2012 by using sexually explicit language
* maltreating Private First Class S.H. on or about 30 March 2012 by using sexually explicit language 

3.  His sentence consisted of reduction to the rank/grade of private/E-1, confinement for 90 days, and a BCD. The sentence was approved and except for the part of the sentence extending to a BCD, was ordered executed. 

4.  His DD Form 214 shows, on 28 February 2014, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, by reason of court-martial.  This form further lists his character of service as "bad conduct."

5.  Army Regulation 635-200 governs 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 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.  Paragraph 3-10 provides 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.

6.  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 contends his conviction and discharge were inequitable because they were based on a pre-service conviction; however, he was convicted by a general court-martial of maltreating two Soldiers during his period of service. 

2.  The court sentenced him to confinement, reduction to the lowest enlisted grade, and a BCD.  His trial by a general court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  

3.  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 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)                                         AR20140020154





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ABCMR Record of Proceedings (cont)                                         AR20140020154



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