IN THE CASE OF: BOARD DATE: 19 May 2010 DOCKET NUMBER: AR20090016698 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 discharge under other than honorable conditions to a general discharge. 2. The applicant states he: * committed the offense of opening an email from a person who's address was not familiar * saw the context of the email without thinking it was an error on his part * realized the mistake he committed after reviewing the pictures * became part of the crime by opening the message and looking at the pictures * accepted his responsibility and told his superior officer about the act * was under the impression that his superior officer was just going to preclude him from making his next grade * his superior officer went against him and he had to face a trial by court-martial * completed 386 days or more of imprisonment at Fort Leavenworth Kansas * completed his punishment * is requesting his discharge be upgraded to at least a general discharge * was a service member who carried out his duty in a very diligent manner * was a caring leader for his subordinates * made a personal mistake on his own personal computer * was highly punished and has paid for his wrongdoing by serving his time * needs to be evaluated by the Department of Veterans Affairs (VA) for his health condition that was incurred while he was in confinement 3. The applicant provides copies of his: * Statement of Service dated 13 June 2007 * Officer Evaluation Report (OER) for the period 28 January 2005 through 1 August 2005 (change of rater) * DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 3 July 2008 CONSIDERATION OF EVIDENCE: 1. With prior enlisted service in the Puerto Rico Army National Guard, the applicant accepted an appointment as a second lieutenant (O-1) in the U.S. Army Reserve, effective 5 June 1992. He entered active duty 24 June 1992. 2. On 21 August 1992, he accepted an appointment in the Regular Army as an O-1 and he was promoted through the ranks to major (O-4) effective 1 June 2003. 3. The applicant was convicted, pursuant to his plea, by a general court-martial on 10 May 2006 of knowingly and wrongfully possessing a computer disk which contained three or more images of child pornography. He was sentenced to confinement for 4 years and dismissal from the service. 4. On 12 October 2006, the convening authority approved only so much of the sentence as provided for confinement for 36 months and the dismissal from service and the sentence was executed except for the part extending to the dismissal. The convening authority also waived the forfeiture of all pay and allowances required by Article 58b, Uniform Code of Military Justice, for a period of 6 months, with payment to the applicant's wife. 5. On 30 October 2007, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence and the conviction became final on 19 February 2008 when the United States Court of Appeals for the Armed Forces denied the applicant's petition for a grant of review. 6. The Assistant Secretary of the Army, Manpower and Reserve Affairs approved the sentence as affirmed by the United States Court of Criminal Appeals and ordered the dismissal executed effective 3 July 2008. 7. Accordingly, on 3 July 2008, the applicant was dismissed under other than honorable conditions, under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-17, as a result of a court-martial conviction. He had completed 13 years, 10 months and 16 days of net active service this period. 8. The Statement of Service the applicant submits shows his periods of service between 22 June 1991 and 13 June 2007 and the OER he submits shows that his senior rater recommended that he not be promoted. He was rated Below Center of Mass (Retain) by his senior rater for the period 28 January 2005 through 1 August 2005. 9. Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component and the discharge functions of all officers on active duty for 30 days or more. Paragraph 5-17 states that an officer convicted and sentenced to dismissal as a result of general court-martial proceedings will be processed pending appellate review of such proceedings as follows: a. a Regular Army officer will be retained on active duty until the appellate review is completed or placed on excess leave in accordance with Army Regulation 600-8-10 (Leaves and Passes). b. a Reserve Component officer may be released from active duty (REFRAD) pending completion of the appellate review, under paragraphs 2.33 and 2.34 or placed on excess leave in accordance with Army Regulation 600-8-10 in lieu of REFRAD. 10. Army Regulation 600-8-24 further provides that 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, or the final revocation of a security clearance under Department of Defense Directive (DODD) 5200.2-R and Army Regulation 380-67 (The Department of the Army Personnel Security Program) for reasons that do not involve acts of misconduct, for an officer. 11. Paragraph 1-22b of the same regulation provides that 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. A separation under honorable conditions will normally be appropriate when an officer: a. submits an unqualified resignation or a request for REFRAD under circumstances involving misconduct. b. is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an Under Other Than Honorable Conditions separation is appropriate. c. is discharged for physical disability resulting from intentional misconduct or willful neglect which was incurred during a period of unauthorized absence. d. is discharged for the final revocation of a security clearance under DODD 5200.2-R and Army Regulation 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, unless a discharge Under Other Than Honorable Conditions is appropriate. 12. 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 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's contentions have been considered and they are not completely supported by the evidence of record. 2. The applicant's records show he was convicted by a general court-martial of knowingly and wrongfully possessing a computer disk which contained three or more images of child pornography. 3. The applicant's records show he was dismissed from the service as a result of a court-martial conviction. His discharge under other than honorable conditions was properly issued and his desire to be evaluated by the VA for his health condition is not a basis for upgrading his discharge to general. 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) AR20090016698 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090016698 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1