BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090010082 


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 under honorable conditions discharge.

2.  The applicant states that his discharge was inequitable because it was based on one isolated incident in 8 months of service with no other adverse action.

3.  The applicant provides an apology letter in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 July 2003.

2.  On 5 May 2004, the applicant was found guilty pursuant to his pleas by a general court-martial of conspiracy to commit larceny of assorted property and money of a value of over $50,000.00, the property of the Army and Air Force Exchange Services, and of stealing currency, furniture, televisions, and other electronic equipment, jewelry, and computers of an aggregate value of over $50,000.00.  He was sentenced to confinement for 22 months and to be discharged from the service with a BCD.  On 13 August 2004, the convening authority approved only so much of the sentence as provided for confinement for 18 months and a BCD and, except for that portion extending to a BCD, ordered it to be executed.  The automatic forfeitures required by Article 58b, Uniform Code of Military Justice, were waived effective 19 May 2004 until 18 November 2004 with direction that the money was paid directly to the applicant's wife.

3.  On an unknown date, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence and the BCD was ordered to be executed.

4.  The applicant was discharged on 11 October 2006 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, section IV, as a result of court-martial.  He completed a total of 2 years and 16 days of creditable active service with 429 days of lost time due to confinement.

5.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD 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.

6.  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.

7.  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 contends that his BCD was inequitable because it was based on one isolated incident in 8 months of service.

2.  It is noted that the trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's record of service shows he was convicted by a general court-martial of conspiracy to commit larceny of assorted property and money of a value of over $50,000.00 and stealing currency, furniture, televisions, and other electronic equipment, jewelry, and computers of an aggregate value of over $50,000.00.  Based on the seriousness of the misconduct for which the applicant was convicted, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis to grant the relief requested.

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)                                         AR20090010082



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ABCMR Record of Proceedings (cont)                                         AR20090010082



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