BOARD DATE:	    6 August 2015

		DOCKET NUMBER:  AR20150000575 


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 an upgrade of his dishonorable discharge to honorable.

2.  The applicant states, in effect:

	a.  He wants his discharge for the period ending 24 March 2008 to be recorded as honorable on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

	b.  He separated from active duty on 24 November 2007, and 17 days later on 11 December 2007 he extended his contract to 24 March 2008 and separated on that date.  No reenlistment or extension documentation was completed.  From 7 through 11 April 2008, he voluntarily went to his court-martial hearing and was found guilty.

3.  The applicant provides:

* Enlisted Record Brief
* DA Form 1695 (Oath of Extension of Enlistment)
* Pages 343-345 of his record of trial 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 August 2004 for a period of 3 years and 16 weeks.  He completed his training and was awarded military occupational specialty 11C (indirect fire infantryman).  He was advanced to the rank of private first class effective 1 September 2005.  On 11 December 2007, he extended his enlistment for a period of 4 months.

2.  On 11 April 2008, he was convicted by a general court-martial of:

* possessing child pornography
* distributing child pornography
* attempting to commit carnal knowledge with a person who had attained the age of 12, but was under the age of 16
* persuading, inducing, or enticing a minor to engage in sexually-explicit conduct
* persuading, inducing, or enticing a minor to engage in sexual intercourse and other indecent sexual acts and liberties via the Internet
* traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor
* transferring obscene matter to a minor via the Internet
* communicating indecent language in writing to a minor (two specifications)
* executing computer programs of a forensically-destructive nature prior to the seizure of his laptop 

3.  He was sentenced to confinement for 15 years and to be dishonorably discharged from the service.  On 20 August 2009, the convening authority approved the sentence.

4.  The U.S. Army Court of Military Review decision is not available for review.  However, Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, General Court-Martial Order Number 204, dated 13 December 2012, shows the applicant's sentence had been finally affirmed, Article 71(c) having been complied with, and the dishonorable discharge would be executed.  These orders also state the findings of guilty as to specifications 5 and 7 (communicating indecent language in writing to a minor) were set aside and dismissed.

5.  On 3 June 2013, he was issued a dishonorable discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial.  He completed a total of 3 years, 8 months, and 6 days of creditable active service with approximately 1,878 days of lost time.

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

	a.  Chapter 3 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a 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.

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 evidence of record does not support the applicant's contention that he was discharged on 24 March 2008.  The evidence shows he was discharged on 3 June 2013.

2.  A 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 discharge appropriately characterizes the misconduct for which he was convicted.

3.  His record of service included one general court-martial conviction for heinous offenses with a minor and approximately 1,878 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's service is insufficiently meritorious to warrant an honorable or a general discharge.

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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20150000575



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ABCMR Record of Proceedings (cont)                                         AR20150000575



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