BOARD DATE: 23 May 2017 DOCKET NUMBER: AR20160001161 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: 23 May 2017 DOCKET NUMBER: AR20160001161 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: 23 May 2017 DOCKET NUMBER: AR20160001161 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, an upgrade of his bad conduct discharge or reinstatement in the Regular Army or U.S. Army Reserve. 2. The applicant states his discharge should be upgraded due to wrongful prosecution. He was wrongfully accused of sexually assaulting his then spouse, which sent his case directly to a general court-martial hearing. During the hearing she stated he never assaulted her and that she was coerced into saying it due to him finding out she was having an affair with another service member. After she found out how much trouble her statement was going to make, she called the U.S. Army Criminal Investigation Command (USACIDC or CID) agent assigned to the case to let him know she had just said her husband assaulted her to get him in trouble and to push him away from the marriage. She was told by the CID agent she was wrong. The CID agent ignored the information and continued to pursue charges. The court-martial process continued and he was charged with assault, even after being reprimanded by his unit. 3. The applicant provides: * sworn statement of his then spouse, dated 16 April 2012 * verbatim testimony of his then spouse * pages 146-181 of his record of trial * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 20 July 2006 for a period of 6 years. 2. He served in Iraq from 15 September 2007 to 4 December 2008. He attained the rank of specialist. 3. He provided a sworn statement from his then spouse, dated 16 April 2012, stating: a. The applicant was arrested on 7 September 2010 for physically assaulting her. b. On 15 February 2012, the applicant sexually assaulted her. c. On 16 February 2012, the applicant was arrested for physically assaulting her. She was also charged with domestic violence and simple assault, but the charges were later dropped. d. On 12 April 2012, he physically assaulted her. 4. He provided verbatim testimony of his then spouse during the Article 32 hearing wherein she states: * she went back to CID and told the agent she didn't want to press charges against her husband, but CID told her it was too late * her husband never sexually assaulted her * the CID agent told her it is still rape if the woman said "no" and that somebody in the Army should know that * the CID agent basically told her they knew better and that she was raped 5. He also provided pages 146-181 of his record of trial, which included leadership testimonies on his behalf. 6. His charge sheet is not available for review. 7. He provided a memorandum from a Staff Judge Advocate (SJA), dated 18 January 2013, stating: a. On 12 October 2012, the applicant was charged with multiple offenses under the Uniform Code of Military Justice (UCMJ). On 3 December 2012, an Article 32 hearing was completed for those charges. The investigating officer recommended not going forward with charge IV (rape), modifying charge VI (child endangerment), and referring the remaining charges to a special court-martial. b. After reviewing the charges and allied papers, the SJA reached the following legal conclusions: * the charges and their specifications allege offenses under the UCMJ * with the exception of charge IV (rape) and charge VI (child endangerment), the allegations in the charges and their specifications are warranted by the evidence in the report of investigation * there is court-martial jurisdiction over the accused and the charged offense c. The SJA concurred with the investigating officer and did not recommend referral of charge IV (rape) or charge VI (child endangerment). d. Contrary to the recommendation of the investigating officer, he recommended referring the remaining charges to a general court-martial. e. On 18 January 2013, the convening authority approved the SJA's recommendation. 8. His court-martial order is not available for review. 9. His records show he was confined from 26 March 2013 to 23 July 2013 and he was placed on excess leave on 26 September 2013. 10. The U.S. Army Court of Military Review and convening authority decisions are not available for review. 11. His DD Form 214 shows he was issued a bad conduct discharge on 13 February 2015 as a result of a court-martial sentence under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3. He completed a total of 8 years, 2 months, and 26 days of creditable active service with 140 days of lost time. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. a. Paragraph 3-7a provides 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 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. c. Paragraph 3-11 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 3. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The evidence of record shows the applicant was issued a bad conduct discharge on 13 February 2015 as a result of a court-martial sentence. 2. His contention that his discharge should be upgraded due to wrongful prosecution relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial/appellate process. 3. His records are void of the specific facts and circumstances surrounding his discharge action. In the absence of evidence to the contrary, it must be presumed that his separation processing was administratively correct and in conformance with applicable regulations in effect at the time. Without the discharge packet to consider, it is presumed that the authority and reason for his discharge and the characterization of service he received were commensurate with his overall record of service. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001161 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001161 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2