IN THE CASE OF:	   

		BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20150000814 


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, in effect, upgrade of his Bad Conduct Discharge (BCD) and that his Defense Central Investigations Index (DCII) and National Criminal Information Center (NCIC) record be sealed or expunged of his general court-martial conviction pertaining to the production of a pornographic movie.
 
2.  The applicant states he was young and in love and he did a stupid thing; however, it has been 15 years since he was convicted by court-martial.  Recently, the U.S. Department of Justice (DOJ) denied him his 2nd Amendment rights due to his confinement related to his BCD.  The DOJ told him the only way to correct the problem is to have his record amended.  

3.  The applicant provides a letter with attachment from the DOJ. 

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 21 August 1997.  He completed training and he was awarded military occupational specialty 31U (Signal Support System Specialist).

3.  The completed facts and circumstances surrounding his BCD are not available for review; however, his record contains:

   a.  General Court-Martial Order Number 27, dated 7 November 2000, which shows he was tried and found guilty of violating Article 134 of the Uniform Code of Military Justice by committing indecent acts on two separate occasions and one instance of indecent assault.  

   b.  General Court-Martial Order Number 61, dated 5 February 2003, which shows his sentence of reduction to private, forfeiture of all pay and allowances, confinement for 9 months, and a BCD, adjudged on 3 December 1999, as promulgated in General Court-Martial Order Number 27, dated 7 November 2000, was affirmed.  Article 71(c) having been complied with, the BCD will be executed.

4.  On 25 August 2003, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) with a BCD after completing 5 years, 4 months, and 22 days of creditable active service with lost time for the period 3 December 1999 to 12 July 2000.

5.  The applicant provides a letter from the DOJ, dated 22 April 2013, which  states the applicant applied to purchase a firearm.  The DOJ tentatively identified a record in a state or federal database which indicated that he is prohibited by state and/or federal law from purchasing or possessing firearms. Attached to the letter is a Federal Bureau of Investigation (FBI) record of charges which states the applicant was charged with the production of a pornographic movie and that he received a general court-martial resulting in 9 months confinement, forfeiture of all pay and allowances, reduction to E1, and a BCD.  

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a BCD 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.

7.  Army Regulation 635-200, paragraph 3-7b, states 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.

8.  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.

9.  Department of Defense Instruction (DODI) 5505.7 contains the authority and criteria for titling decisions.  It states, in pertinent part, that titling only requires credible information that an offense may have been committed.  It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the applicant's predicament, evidence shows he received a BCD pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and her rights were fully protected.

2.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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.  Given the absence of any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  The applicant's contention that his FBI (DCII/NCIC) record should be cleared to allow him to purchase or possess firearms was carefully considered.  However, by law and regulation, titling only requires credible information that an offense may have been committed.  It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.

5.  The applicant is advised that he should attempt to resolve any inconsistencies he believes exist between the offenses he committed and what is listed on the FBI report through the United States Army Criminal Investigation Command, United States Army Crime Records Center, 27130 Telegraph Road, Quantico, Virginia  22134, which is the agency responsible for information on the DCII which is the basis for the NCIC and FBI report.

6.  In view of the foregoing, there appears to be an insufficient regulatory and/or  evidentiary basis to grant the 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 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)                                         AR20150000814





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ABCMR Record of Proceedings (cont)                                         AR20150000814



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