IN THE CASE OF:
BOARD DATE: 23 July 2015
DOCKET NUMBER: AR20140021116
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 discharge.
2. The applicant states, in effect, that his discharge should be upgraded because he is no longer required to register as a sex offender. He has been awarded Department of Veterans Affairs (VA) benefits and he is attending Everest University. He is also seeking employment. He wants to become a thriving member of society.
3. The applicant provides a two-page table of contents of documents submitted with his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 14 September 2000 for a period of 3 years, training as a chemical operations specialist and assignment to Fort Carson, CO. He completed training and he was transferred to Fort Carson for his first assignment. He remained on active duty through a series of continuous reenlistments and was promoted to the rank of sergeant on 1 May 2009.
2. On 24 February 2011, the applicant was issued a General Officer Memorandum of Reprimand for driving under the influence of alcohol.
3. On 19 May 2011, the applicant was convicted pursuant to his plea by a general court-martial of committing indecent conduct involving a child over the internet. He was sentenced to be reprimanded, reduced to the pay grade of E-1, confinement for 2 years, a forfeiture of all pay and allowances, and a Dishonorable Discharge. However, the convening authority approved only so much of the sentence as pertained to a reprimand, reduction to E-1, a forfeiture of pay and allowances for 9 months, confinement for 9 months, and a BCD. He was transferred to Fort Sill, OK, to serve his sentence to confinement.
4. On 23 July 2013, the applicant was in an excess leave status when he was discharged pursuant to a duly-affirmed court-martial conviction. He had served 12 years, 3 months, and 4 days of active service and he had 218 days of lost time due to being in confinement.
5. A review of his records shows that he served two tours in Germany and made five deployments to Iraq.
6. On 22 November 2012, the Attorney General of the State of California notified the applicant that he was no longer required to register as a sex offender in that State.
7. On 27 March 2014, the VA notified the applicant, in effect, that his period of service from 14 September 2000 through 25 September 2006 was considered honorable service for VA purposes and his period of service from 26 September 2006 through 26 July 2013 was not.
8. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for 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.
9. 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. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with the applicable law and regulation and the discharge appropriately characterizes the misconduct for which the applicant was convicted. Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.
2. The applicants contentions and numerous supporting documents have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offenses. He has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.
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) AR20140021116
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