ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  17 July 2019

	DOCKET NUMBER:  AR20170011610


APPLICANT REQUESTS: 

* overturn of general court-martial due to investigator finding
* an upgrade of his bad conduct discharge to general under honorable conditions
* return to active duty in the combat arms
* a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored statement
* Congressional Privacy Act Release Form
* Stipulation of Fact from his court-martial

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he is requesting overturn of his general court-martial due to investigators findings, removal of military enlistment bar, upgrade of discharge, and return to active duty in the United States Army and continue in combat arms to be an instrument of freedom and defense for his country.  He states after investigator evidence and his openly admitted he did not seek out nor purposefully download any child pornography was shown that knowledge of any found child pornography was deleted or attempted to be deleted.  Many files were corrupted malware and a virus that would not delete.  He states his crime of failing to report to his chain of command not any sexual deed.

3.  The applicant provides a self-authored statement in which he states: 

	a.  The purpose of the document is to provide the convening authority with clear and convincing evidence, for the specific request for upgrading his discharge, removing the military enlistment bar, and to receive full military benefits.  His statement begins with the fact that he is a multiple tour combat Veteran and was also one of the first 1,000 troops over in the berm in Operation Iraqi Freedom (OIF) -1 in 2003.  He was also one of the first Soldiers to assault and secure Baghdad Internal Airport (BIAP) and participated in events that have affected him in very considerable ways.  His health issues that affect him are a constant battle and he copes with them day by day.  He has been diagnosed with Chronic Post Traumatic Stress Disorder/Acute Stress Disorder/Generalized Anxiety Disorder/ Undifferentiated Somatoform Disorder and Major Depressive Disorder but due to his current discharge he is unable to received benefits or treatment through any VA (Department of Veterans Affairs) hospital.  He outlines what a sex offender is by definition and states he has been labeled as something he is not.  He explains in full detail the actions that led to his discharge in his five page statement.  He takes responsibility for what he actually did which was steal music, regular legal pornography, movies and other files.  He was in violation of his duties as a Soldier and an ambassador in uniform by not reporting to his chain of command once he learned to the illegal material, instead of deleting it and moving on, but one thing he is not is a sex offender.

	b.  He also explains how he was on a path of failure once his computer and hard drive had been seized by Criminal Investigation Division (CID) but he was not confined or restricted to post.  He was confident nothing would come of the investigation because he knew that he had never searched for nor attempted to access any child pornography.  He states he was in weekly to biweekly contact with his appointed defense (Captain) attorney who had less experience than the two prosecuting (Major) attorneys.  He states that one of the prosecuting major attorneys drove out to his duty location to talk to him and he could inform his attorney however the meeting would be over.  He states the prosecuting major attorney told him that everyone has a boss and his boss has instructed him to pursue the case even after he didn’t want to.  He states the major attorney said he didn’t know who the applicant pissed off but he needed to understand his military career was over, the military goes "HEAVY" on anything dealing with sex offenses.  He states the major told him no one cares if he looked for it or not, no one cares what his intent was, it makes the Army look bad and now the Stars and Stripes got wind of it.  He states the major told him that they are going to make an example out of him and the best he could do would be 10 months of confinement and bad conduct discharge or he could face five years in prison with a full dishonorable.  He states he brought up just going to trial saying the evidence even clearly says it was a complete accident and that was even in the investigative report that came back.  The major asked him if he knew how officers were promoted and explained their promotions are acts of Congress.  He states the major affirmed this and said who is going to promote a guy who reviews a child porn case and sides with the defendant.

	c.  He will lose his case and receive more time than the 10 months he will be offering his captain defense attorney in a few days.  He was 20 years old at the time and despite the investigative findings they were going to lock him up no matter what.  He took the lesser of 2 evils as advised by the prosecuting major.  He states another disadvantage was the burden of proof needed by the prosecution to convict, everywhere else is beyond a reasonable doubt except in a court-martial it is much less.  He states he was at every disadvantage, up against giants and after it was proved by investigators that he did not seek out nor purposefully download any child pornography, he was still sought after.  In closing he states he imagines the committee and convening authority will request documents and findings.  What happened wasn’t right, it wasn’t professional and as one JAG (Judge Advocate General) officer put it he got railroaded.  He has shown the stipulation of facts from the court-martial which is attached to police many attorneys, sheriffs and to others within different JAG offices and to this day he has not heard one of them say that this was right.  He states if it is necessary to testify in front of the Board or committee he is very willing to do so.  He wrote his statement without an attorney because at the moment he couldn’t afford one and these are his words not the doctored words of someone else.  He has been terrified of ridicule, feeling who would ever listen someone labeled as a sex offender.  He states the more people that read the stipulation of facts and find out what happened to him, he is getting some support and finally had the courage to speak out and to hopefully seek justice.  He remembered Sergeant First Class X__ in Iraq told him, “if you have the ability to affect change and to do what’s right, then it’s not only your responsibility but your duty to do so to protect and defend your brothers and sisters.”  He states he loves the Army and the brotherhood he has experienced by his single greatest regrets is messing with LimeWire at all.  His greatest wish is to serve his country again, never has he been happier than to toe the front line for his county.

4.  The applicant provides original stipulation of fact and/or presentence investigative report that outline the charges against the defendant during his court-martial, his work history, his finances, his objections to certain things during pre-trial sentencing and other charges since his discharge from the military which include:

* failure to register as a sex offender
* harassment 3rd degree
* simple assault
* reckless driving
* operation without registration
* fail to carry registration
* vehicle operator refuse to comply police

5.  Review of the applicant's service records shows: 

	a.  He enlisted in the Regular Army on 10 April 2002. 

	b.  He served in Korea from 21 June 2006 to 5 August 2007.   

	c.  On 19 June 2007, Camp Humphreys, Korea, consistent with his pleas, he was found guilty and convicted by a general court-martial of one specification of wrongfully possessing child pornography.  The court sentenced him to reduction to E-1, a forfeiture of all pay and allowances, confinement for 30 months, and a bad conduct discharge.

	d.  On 3 July 2007, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 10 months, reduction to E-1, and forfeiture of all pay and allowances, and except for the bad conduct discharge, he ordered the sentence executed.  The record of trail was forwarded to the appellate authority for review. 

	e.  The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 

	f.  General Court-Martial Order Number 70, issued by the Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, on 26 March 2009, shows that after completion of all required post-trial and appellate reviews, the sentence had been finally affirmed and the convening authority ordered the applicant's bad conduct discharge duly executed.

	g.  The applicant was discharged on 24 July 2009.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) chapter 3 with a characterization of a bad conduct and a separation code JJD..  He completed 6 years, 6 months, and 21 days of active military service with lost time from 19 June 2007 to 12 March 2008.  His DD Form 214 also shows:

		(1)  He was assigned Separation Code JJD and Reentry (RE) Code 4

		(2)  He was awarded or authorized:

* Army Good Conduct Medal
* National Defense Service Medal
* Global War on Terrorism Expeditionary Medal
* Global War on Terrorism Service Medal
* Iraq Campaign Medal with star
* Army Service Ribbon
* Basic Aviation Badge. 

6.  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.

7.  By regulation (AR 635-200), a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed. 

8.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

9.  By regulation (AR 635-5-1), the applicant was assigned Separation Code JJD based on his conviction by a court-martial and subsequent issuance of a bad conduct discharge.  Such Separation Code has a corresponding RE Code of 4.  An RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification.

10.  By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

BOARD DISCUSSION:

The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  The Board is not empowered to overturn a court-martial conviction.  Therefore, the discharge stands and there will be no relief of a reinstatement in the Army.  As for the character of service, he did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the serious criminal offense, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.




BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	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.
	 
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

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 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  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.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances.

	d.  A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed. 

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.  

5.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes).

* An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met
* An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted 
* An RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification

6.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The SPD Code of "JJD" is used when the authority for voluntary discharge is Army Regulation 635-200, chapter 3, as a result of a court-martial.  

7.  Table 2-3 (SPD/RE Code Cross Reference Table) of Army Regulation 635-5 (Separation Documents) establishes the RE codes to be used based on the appropriate SPD code.  In this case, the cross reference table shows that an
RE code “4” is assigned when the SPD code is "JJD."

8.  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, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170011610


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