IN THE CASE OF:	   

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150002996 


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 bad conduct discharge to general under honorable conditions.

2.  The applicant states:

* he was court-martialed, but he was not in pretrial confinement
* he was the best Soldier in his platoon according to his executive officer and platoon sergeant
* he had prior honorable service in the U.S. Marine Corps
* he gave 100 percent of himself for almost a year during the investigation period and he would still do this today
* he feels he can still contribute to his country and he desires to enlist again
* he speaks fluent Arabic and French and he has an Egyptian background
* he has not been idle and he served his entire sentence

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Headquarters, Fort Bliss, TX, General Court-Martial Order Number 11, dated 6 May 2011
* Sailor/Marine American Council on Education Registry Transcript, dated 16 November 2010
* Office of the Judge Advocate General letter, dated 10 September 2014
* U.S. Army Legal Services Agency Defense Appellate Division letter, dated 13 October 2014
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 April 2009.

2.  Headquarters, Fort Bliss, TX, General Court-Martial Order Number 11, dated 6 May 2011, shows:

	a.  the applicant was tried and found guilty by general court-martial of the following charges:

* engaging in sexual contact with another Soldier who was substantially incapacitated
* furnishing alcohol to a minor under the age of 21
* wrongfully using marijuana on or about 10 February 2010

	b.  he was sentenced to a bad conduct discharge, confinement for 5 years, forfeiture of all pay and allowances, and reduction to the rank/grade of private/
E-1, and

	c.  he was credited with 5 days of confinement against his sentence of confinement.

3.  A DA Form 4187 (Personnel Action), dated 18 June 2010, shows his status changed from present for duty to confined by military authorities on the same date.

4.  Headquarters, Fort Bliss, TX, Orders 174-61, dated 23 June 2010, show he was confined at Fort Leavenworth, KS, effective 28 June 2010.

5.  Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, OK, General Court-Martial Order Number 23, dated 16 January 2014, affirmed his court-martial action and directed execution of his bad conduct discharge.

6.  On 10 February 2014, he was discharged accordingly.  His DD Form 214 shows he completed 1 year, 2 months, and 4 days of creditable active service and he had lost time from 18 June 2010 through 10 February 2014.

7.  He provided a Sailor/Marine American Council on Education Registry Transcript, dated 16 November 2010, showing he completed recruit training (basic training) on 25 March 2008.

8.  He also provided:

	a.  a letter from the Office of the Judge Advocate General, dated 10 September 2014, showing his request for reinstatement to active duty was returned without action; and

	b.  a letter from the U.S. Army Legal Services Agency, dated 13 October 2014, showing the U.S. Army Court of Criminal Appeals affirmed the findings and sentence in his case and denied his request for a review.  He was further advised of other post-appeal remedies.

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.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 3-11 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his bad conduct discharge.

2.  He was convicted of engaging in sexual contact with another Soldier who was substantially incapacitated, furnishing alcohol to a minor under the age of 21, and wrongfully using marijuana.  His conviction and sentence by a general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given the bad conduct discharge until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Military Review.

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 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 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)                                         AR20150002996



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ABCMR Record of Proceedings (cont)                                         AR20150002996



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