BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150013049 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150013049 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. BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150013049 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 upgrade of his dishonorable discharge to a general discharge under honorable conditions. 2. The applicant states the discharge was based solely on one isolated incident. 3. The applicant provides no additional documentation to substantiate his request. 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 was an approximately 33 year old Regular Army staff sergeant when he was convicted by a general court-martial. 3. On 20 July 2001 the applicant: a. pled not guilty to one charge with one specification of sodomy by force and without consent to a child under the age of 16 years, on or about 10 July 2000. He was found guilty of non-forcible sodomy. b. he pled not guilty to one charge with three specifications of indecent acts with three minor children – * with a child under the age of 16 years from on or about 1 February 1998 to on or about 20 August 2000; he was found not guilty * with a child under the age of 16 years between on or about 1 October 1995 to on or about 10 July 2000; he was found not guilty * with a child under the age of 16 years between on or about 1 October 1995 and on or about 10 July 2000. The applicant was found guilty; and the general court-martial convening authority (GCMCA) amended the dates to "on or about 1 July 2000 and on or about 15 July 2000." 4. The approved sentence included confinement for 8 years and a dishonorable discharge. The GCMCA waived the forfeitures of pay and allowances required by Article 58b of the Uniform Code of Military Justice for the period from 3 August to 26 December 2001 with the money paid to the applicant's spouse. The sentence was ordered executed except for the dishonorable discharge which was suspended pending review. 5. U.S. Combined Arms Center and Fort Leavenworth, United States Disciplinary Barracks General Court-Martial Order Number 22, dated 21 September 2005, shows that, Article 71c having been complied with, the dishonorable discharge was ordered executed. 6. On 16 December 2005 the applicant was discharged in pay grade E-1. His DD Form 214 shows he was discharged in accordance with chapter 3 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) because of a court-martial conviction with a dishonorable discharge. He had 18 years, 5 months and 15 days of creditable service. He was retained in the service for the convenience of the government for 1,452 days. His authorized awards included the Army Commendation Medal (4th Award), Army Achievement Medal (5th Award), Valorous Unit Award, Army Good Conduct Medal (4th Award), Armed Forces Expeditionary Medal (2nd Award), Southwest Asia Service Medal with three bronze service stars, Kuwait Liberation Medal-Saudi Arabia, and the Kuwait Liberation Medal-Kuwait among others. REFERENCES: 1. The Table of Maximum Punishments of the Manual for Courts-Martial shows that a dishonorable discharge is authorized for any sodomy offense with a child under the age of 16 years and any indecent act with a child under the age of 16 years. 2. 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. 3. Army Regulation 635-200 governs the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. 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. c. Paragraph 3-10 states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. DISCUSSION: 1. The applicant contends his dishonorable discharge was unjust because it was based on one isolated incident. The record shows the applicant was convicted by a general court-martial, which was warranted by the gravity of the offenses charged at the time. The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 2. The law prohibits any redress by this Board of the finality of a court-martial conviction. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013049 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013049 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2