IN THE CASE OF: BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160005256 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 IN THE CASE OF: BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160005256 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. IN THE CASE OF: BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160005256 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. 2. The applicant states, in effect: a. He was charged with violation of Article 120 (Rape and Carnal Knowledge) of the Uniform Code of Military Justice. Substantial incapacitation was only chargeable between 2007 and 2012. His trial was in February 2013. The court was extremely biased and did not prove beyond a reasonable doubt that the events occurred. That is the standard for a general court-martial conviction. b. Making copies of his record of trial is expensive. c. If his discharge is not upgraded, the character of service will stay with him for the rest of his life, creating a hardship for him and his future family. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 1 November 2006. He attained the rank of sergeant effective 1 August 2011. 2. His records are void of the specific facts and circumstances surrounding his discharge action. 3. The available records do not contain the following documents: * general court-martial order * U.S. Army Court of Military Review decision * convening authority action 4. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was issued a bad conduct discharge on 17 June 2015 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial. He completed 8 years, 7 months, and 21 days of creditable active service with 145 days of lost time. REFERENCES: 1. Department of the Army Pamphlet 27-9 (Military Judges' Benchbook), paragraph 3-45-5, defines "substantial incapacitation" as "that level of mental impairment due to consumption of alcohol, drugs, or similar substance; while asleep or unconscious; or for other reasons; which rendered the alleged victim unable to appraise the nature of the sexual conduct at issue, unable to unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise unable to make or communicate competent decisions." 2. 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 states 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. 3. Army Regulation 15-185 (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. 4. 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. DISCUSSION: 1. The applicant implies he was convicted by a general court-martial of Article 120 (Rape and Carnal Knowledge) of the Uniform Code of Military Justice in February 2013. 2. His records are void of the specific facts and circumstances surrounding his discharge action. His DD Form 214 shows he was issued a bad conduct discharge on 17 June 2015 as a result of a general court-martial sentence. 3. His contentions that the court was extremely biased and did not prove beyond a reasonable doubt that the events occurred relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial/appellate process. 4. 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. 5. 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) AR20160005256 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005256 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2