RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060014851 


	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. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Eddie L. Smoot

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 his bad conduct discharge (BCD) be upgraded to a general discharge, under honorable conditions.

2.  The applicant states, in effect, that he is asking for clemency by the board.  During the time before his incident, he tried to be the best Soldier he could.  He made some mistakes while he was in the Army but always tried to put the Army first.  He knew he was wrong to take matters into his own hands and he apologizes for what he did and he is truly sorry to the individual that he hurt.  He was under a lot of pressure at the time and was not able to handle it.  He states that if he had it to do over again he would have sought help and would not have brought disgrace on the Army, his family, and himself. 

3.  He adds that the Board should consider his upgrade because he made a terrible mistake and that overall he tried to be a good Soldier.  His family has been in the Army dating back to the Civil War.  His grandfather was in World War II (WWII) and was in D-Day and landed on the beaches on Normandy.  His great uncle also fought in WWII and served with distinction.  His father was in the Air Force during the Vietnam War and received an Honorable Discharge.  He knows he did wrong and while he was doing time in prison, he tried to make amends by not causing problems.

4.  He has been out of the Army for almost 10 months now and has started a new life.  He is an apprentice with the Denver Pipefitters Union and has not been in any kind of trouble.  He felt that the incident in the Army was brought on by stress and he believes that he was assaulted by his roommate and that is why he hit him.  He is asking that the Board grant him clemency and help him start a new life.

5.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 2 October 2002.  The applicant successfully completed basic combat training and advanced individual training at Fort Knox, Kentucky.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 19D, Cavalry Scout. 

2.  At a general court-martial on 13 April 2005, the applicant was found guilty of committing an assault upon another Soldier with a means likely to produce bodily harm, on 12 October 2004; and, unlawfully striking another Soldier in the mouth with a closed fist on 14 October 2004.  His sentence consisted of a reduction to pay grade E-1, confinement for 24 months, and a BCD.  Only so much of the sentence as provided for reduction to E-1, confinement for 18 months, and a BCD was approved.  He was credited with 176 days of confinement against the sentence to confinement.

3.  On 29 September 2005, the United States Army Court of Criminal Appeals (ACCA) affirmed the findings and sentence.

4.  The portion of the sentence pertaining to confinement having been served and the provisions of Article 71(c) having been complied with, on 3 February 2006, the general court-martial convening authority directed that the BCD be duly executed.

5.  On 24 March 2006, the applicant was discharged from the Army pursuant to the sentence of the general court-martial and was issued a BCD.  He had completed 2 years, 2 months, and 28 days of creditable service and had 1 year, 2 months, and 25 days of lost time due to confinement.  

6.  The applicant's case is ineligible for review by the Army Discharge Review Board (ADRB) due to his conviction by a general court-martial.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provides 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 sentence affirmed before it can be 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.  Title 10, United States Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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 evidence shows that the applicant was convicted by a general court-martial for committing an assault upon another Soldier by striking him in the face with a golf club, and did thereby intentionally inflict grievous bodily harm upon him, and for unlawfully striking another Soldier in the mouth with a closed fist.  He was discharged pursuant to the sentence of a general court-martial and was issued a BCD after the sentence was affirmed.

2.  The general court martial the applicant received on 13 April 2005 was warranted by the gravity of the offenses charged.  A bad conduct discharge is a severe punishment that is adjudged by a court-martial when it determines a Soldier has engaged in bad conduct.  The applicant's offenses when weighed with his overall disciplinary history, warranted this punishment.

3.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

4.  The applicant alleges that, during the time before his incident, he tried to be the best Soldier he could and that he made some mistakes while he was in the Army but tried to put the Army first.  He acknowledges that he was wrong to take matters in his own hands, apologizes for what he did, and he is truly sorry to the individual that he hurt.  He stated that if he had to do it all over again he would have sought help and would not have brought disgrace on the Army, his family, and himself.  However, his assertions and acknowledgement of his misconduct do not warrant clemency. 

5.  The applicant elaborated on his family military history; however, it does not support a warrant for clemency or an upgrade of his BCD.



6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JLP____  ___LDS _  __ELS___  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.




______Linda D. Simmons____
          CHAIRPERSON




INDEX

CASE ID
AR20060014851
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070508
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
2006000324
DISCHARGE AUTHORITY
AR 635-200, chap 3
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.