BOARD DATE:	    6 August 2015

		DOCKET NUMBER:  AR20150000592 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his characterization of service as honorable.

2.  The applicant states that he believes the record to be in error because the totality of his Army service was in fact honorable.  The single incident which led to his discharge was a one-time event which occurred off post and did not affect his unit in any way.  His work evaluations always showed him as ?Best Qualified, Must Promote.?  He has received 14 different decorations and awards based on the quality of his service.  His certificate for award of the Bronze Star Medal states he displayed ?Unparalleled courage under fire.?  

3.  The applicant provides copies of:

* Memorandum for Record, Joint Task Force Aguan, dated 15 July 1999
* Memorandum, 236th Combat Communications Squadron, dated               11 September 1999
* DA Form 67-9 (Officer evaluation Report) dated from 20 February 2004 to 25 September 2008 (7 consecutive report periods)
* Memorandum, 4th Kandak 2nd Brigade, 205th Corps, dated 18 April 2008
* Certificate for award of the Bronze Star Medal for the period ending          21 December 2008
* Letter of support, United States Disciplinary Barracks, Fort Leavenworth Kansas, dated 30 June 2010
* Memorandum, Monroe Recruiting Station, dated 6 January 2011
* DD Form 214 ending on 22 April 2013

CONSIDERATION OF EVIDENCE:

1.  On 14 December 2002, the applicant entered the Regular Army.  He attained the rank of captain, pay grade O-3 effective 1 February 2006.

2.  General Court-Martial Order Number 71, Fort Sill, Oklahoma, dated 13 May 2010 shows the applicant was charged with violating Article 120 by engaging an a sexual act, to wit: sexual intercourse with another person who was substantially incapacitated and substantially incapable of declining participation in the sexual act, with the intent to impose abuse.  The applicant pled guilty and was found guilty.  The applicant was sentenced to a forfeiture of all pay and allowances, confinement for 9 years, and a dismissal from the service.  The court-martial convening authority approved only so much of the sentence as provided for 
5 years confinement, total forfeiture of pay and allowances, and a dismissal from the service.

3.  On 22 April 2013, the applicant was dismissed from the service.  His DD Form 214 shows in Remarks that his service was honorable during the period 
14 December 2002 to 23 July 2009.  His characterization of service for the remaining period of active duty was under other than honorable conditions.

4.  A review of the documents provided by the applicant revealed that his performance of duty was consistently rated as best qualified.  He had received personal decorations including a Bronze Star Medal for his courageous service in a combat zone.  The two letters of support stated that he had potential for further military service and could possibly return to such duty upon completion of his parole.

5.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.  When an officer's tour of AD is terminated due to discharge, retirement, or REFRAD, the period of service will be characterized as " Honorable," "General" ("Under Honorable Conditions"), or "Under Other Than Honorable." depending on the circumstances.  The character of service will be predicated on the officer's behavior and performance while a member of the Army. Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident.  However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service.
   a.  An officer will normally receive an Honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty.
   b.  An officer will normally receive an Under Honorable Conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an Honorable discharge 
   c.  An officer will normally receive an Under Other Than Honorable Conditions characterization of service when they are involuntarily separated due to misconduct, moral or professional dereliction for which punishment was imposed.

6.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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 that his DD Form 214 should be corrected to show his characterization of service as honorable because the totality of his Army service was in fact honorable.

2.  His trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction and dismissal were effected in accordance with applicable law and regulations and the dismissal appropriately characterized the misconduct for which he 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 or dismissal if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Absent any sufficiently mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  In view of the above, there is no basis to support the applicant’s request to change his characterization of service.  Therefore, his 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 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)                                         AR20150000592





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ABCMR Record of Proceedings (cont)                                         AR20150000592



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