RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060012966 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. Kenneth Wright

Chairperson

Mr. Patrick McGann

Member

Ms. Karmin Jenkins

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, in effect, that clemency be granted in the form of an honorable discharge.

2.  The applicant states that he served his country honorably.  He points out that his case isn’t any different from any other Basic Allowance for Housing case.  He states, in effect, that he made the decision to do the right thing and that he could have easily left the military with an honorable discharge had he not said anything. He points out that his early release to further his education was approved by his chain of command and that he was not pressured to do what he did.  He contends that he had to make things right with the Army and the Lord.     

3.  In a statement of support for a Chapter 10, dated 6 May 2003, a Senior Defense Counsel states, in pertinent part, that the applicant turned himself in and reported his own misconduct (unauthorized BAH), and that he made partial restitution.  He stated that the applicant had rehabilitation potential, that he was deeply remorseful, and that a Chapter 10 would adequately serve the needs of good order and discipline and result in a fair and just disposition in this case.     

4.  The applicant provides a personal statement; a statement of support from a Senior Defense Counsel; three recommendations from his chain of command; a leave form; separation orders; a DA Form 4187 (Personnel Action), dated 
24 November 2002; general court-martial order number 174, dated 
10 September 2004; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 3 March 2000 and trained as an infantryman.  He attained the rank of specialist.

2.  On 6 June 2003, in accordance with his pleas, the applicant was convicted by a general court-martial of signing a false official record with intent to deceive (DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters, and/or Variable Housing Allowance)) and larceny ($14,621).  He was sentenced to be reduced to E-1, to forfeit all pay and allowances, to be confined for 12 months, and to be discharged from the service with a bad conduct discharge.  On 26 August 2003, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, reduction to E-1, forfeiture of all pay and allowances, and confinement for 6 months. 

3.  On 15 June 2004, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 18 August 2004, the United States Court of Appeals for the Armed Forces denied the applicant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals. 

4.  The bad conduct discharge was ordered to be executed on 10 September 2004.

5.  Accordingly, the applicant was discharged with a bad conduct discharge on 22 October 2004 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served 4 years, 2 months, and 23 days of total active service with 144 days of lost time due to confinement.   

6.  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. 

7.  Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or to take clemency action.

8.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

The applicant was discharged with a bad conduct discharge for signing a false official record with intent to deceive and larceny.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable discharge is not warranted in this case, nor was his service sufficiently satisfactory to warrant a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

KW_____  _PM_____  _KJ_____  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.



_____Kenneth Wright___
          CHAIRPERSON




INDEX

CASE ID
AR20060012966
SUFFIX

RECON

DATE BOARDED
20070510
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
20041022
DISCHARGE AUTHORITY
AR 635-200 Chapter 3
DISCHARGE REASON
As a result of a court-martial
BOARD DECISION
NC
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.