IN THE CASE OF: BOARD DATE: 10 March 2009 DOCKET NUMBER: AR20080016763 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 that his Bad Conduct Discharge (BCD) be upgraded to a general discharge. 2. The applicant states that he has been discharged for more than 1 year. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 1. The applicant's military records show that he enlisted in the Regular Army on 12 March 2003 and he was awarded the military occupational specialty of motor transport operator. 2. On 22 October 2004, the applicant pled and was found guilty by a general court-martial of stealing a fellow Soldier's car, a value of about $11,000; of stealing money of a value of $4,229.47; and of falsely making certain checks (five) which would, if genuine, apparently operate to the legal harm of another; and for being absent without leave (AWOL) from 29 July to 30 August 2004. The sentence consisted of confinement for 2 years and a BCD unless the applicant made restitution in the amount of $4,229.47 within 60 days of the sentence, in which case the Military Judge recommended that the convening authority approve no more than 12 months of confinement and a BCD. 3. The convening authority approved the sentence. 4. On 17 October 2006, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence of the court-martial. 5. On 6 March 2007, the applicant's BCD was ordered to be executed. 6. Accordingly, on 25 July 2007, the applicant was separated with a BCD. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 9. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 10. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant has not stated that there was an error or injustice in his being separated with a BCD, and no error or injustice was noted. 2. The applicant has based his request solely on the passage of time. In this regard, there is not and has never been any policy to automatically upgrade a discharge based on the passage of time. 3. The applicant was convicted of committing serious violations of the Uniform Code of Military Justice. His BCD appropriately reflects his characterization of service and there is no reason to change it. 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) AR20080016763 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080016763 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1