RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 February 2007 
	DOCKET NUMBER:  AR20060006067 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Mr. Carl W. S. Chun

Director

Mrs. Victoria A. Donaldson

Analyst


The following members, a quorum, were present:


Ms. Barbara J. Ellis 

Chairperson

Ms. Linda D. Simmons

Member

Mr. Michael J. Flynn

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he participated in activities directed towards "self and community development" while he was confined and that he needs a post-secondary education to succeed in life.

3.  The applicant provides medical reports, work records, character references, employment records, educational documents, and document of denial of his clemency request in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army at the age of 17.  He completed basic training and advanced individual training and was awarded the military occupational specialty (MOS) 37F10 (PSYOP Specialist).  The highest grade the applicant held was private/pay grade E-2.

2.  On 30 April 2004, the applicant accepted an Article 15 offered by his commander for wrongful use of marijuana between on or about 23 February 2004 and on or about 25 March 2004.  The commander imposed a punishment consisting of reduction to the grade of E-1, forfeiture of $597.00 per month for two months (suspended, to be automatically remitted if not vacated before 16 June 2004), and restriction for 30 days.  The applicant did not appeal the punishment.

3.  On 1 November 2004, the applicant pled guilty before a military judge sitting alone at a general court-martial to wrongfully using marijuana from on or about 9 August 2003 to 9 September 2003, wrongfully distributing cocaine on or about 10 June 2004, wrongfully distributing cocaine and marijuana on 7 June 2004, and wrongfully distributing cocaine on 27 May 2004.  The military judge sentenced the applicant to confinement for 18 Months and a Bad Conduct Discharge.

4.  General Court Martial Order Number 2, dated 16 February 2005 shows that the convening authority approved the findings of guilt and adjudged the sentence.


5.  On 13 April 2005, the United States Army Court of Criminal Appeals affirmed the findings and sentence.  On 13 July 2005, the United States Court of Appeals for the Armed Forces denied the applicant's petition for review.
6.  Department of the Army, Headquarters, U.S. Army Filed Artillery Center and Fort Sill, Fort Sill, Oklahoma, General Court Martial Order Number 152, dated 22 September 2005, affirmed the sentence to confinement for 18 months and ordered the bad conduct discharge executed.

7.  The applicant's DD Form 214 shows that he was discharged as a result of court-martial on 2 December 2005, under the provisions of Army Regulation 
635-200 (Personnel Separations), with the separation code JJD and the Reentry code 4.  This form further shows the applicant's character of service as bad conduct. 

8.  This DD Form 214 also shows the applicant had 398 days of time lost during his military service.

9.  On 26 July 2005, the Department of the Army, Army Clemency Parole Board denied the applicant's request for parole.

10.  The applicant provided several letters of support from friends, family members, and employers which all state that he accepts responsibility for his actions, that he made the responsible decision to raise his son as a teenage father, and that he is an exceptional young man.  The letters also state that the applicant was an Eagle Scout, responsible teenage father, one-time Soldier of the Month and a young man of great heart.  The authors each request that the applicant be granted clemency in order to get his life "back on track."

11.  Army Regulation 635-200 provides for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial imposing a bad conduct discharge.  

12.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.




13.  Army Regulation 635-200, paragraph 3-7a, 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.

14.  Army Regulation 635-200, paragraph 3-7b, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant was 20 years of age at the time of his first offense.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

2.  The applicant's records clearly show he was tried and convicted by a General Court-Martial for possession and distribution of marijuana and cocaine and use of marijuana.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  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.  

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of an honorable or a general discharge.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LDS____  _BJE___  _MJF____  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.





_ __Barbara J. Ellis____
          CHAIRPERSON




INDEX

CASE ID
AR20060006067
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070201
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.