IN THE CASE OF:	  

		BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090018926 


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 his bad conduct discharge be upgraded to a general discharge.

2.  The applicant states he wants to apply for and receive veterans' benefits and medical care.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 3349 (Physical Profile)
* Enlisted Record Brief
* Standard Form 600 (Chronological Record of Medical Care)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 June 1996.  He served as a health care specialist and remained on active duty through continuous reenlistments.  He attained the rank of specialist on 1 September 1998.

2.  On 17 November 2006, the applicant was convicted by a general court-martial of two specifications of selling military property.  He was sentenced to be reduced to pay grade E-1, to be confined for 13 months, and to be discharged from the service with a bad conduct discharge.  On 25 January 2007, the convening authority approved the sentence.

3.  On 2 May 1007, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

4.  On 23 August 2007, the convening authority ordered the bad conduct discharge to be executed.

5.  Accordingly, the applicant was discharged with a bad conduct discharge on 1 February 2008 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial.  He had served a total of 10 years, 6 months, and 13 days of creditable active service with 394 days of lost time.

6.  In support of his claim, the applicant provided a Standard Form 600, dated 21 October 2005, which shows he was treated for neck/back pain.  He also provided a DA Form 3349, dated 1 June 2006, which shows he was issued a permanent physical profile of 231111 for chronic neck pain.

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier 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.  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.

9.  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 Army Board for Correction of Military Records (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 ABCMR does not correct records solely for the purpose of making the applicant eligible for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  Trial by court-martial was warranted by the gravity of the offense 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 included one general court-martial conviction and 394 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

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)                                         AR20090018926



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ABCMR Record of Proceedings (cont)                                         AR20090018926



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