RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 June 2007
	DOCKET NUMBER:  AR20060015255 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Paul Wright

Analyst


The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Ronald D. Gant

Member

Mr. Roland C. Heflin

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, an upgrade of his Bad Conduct Discharge.

2.  The applicant states he believes his discharge was unjust because the record of his mental state wasn't admitted in his trial.  His medical record when he was in the Panama City Behavioral Hospital wasn't presented.

3.  The applicant provides a document from Bay Medical Center, dated 15 December 2000.

CONSIDERATION OF EVIDENCE:

1.  On 1 June 2000, the applicant enlisted in the Regular Army for a period of 3 years.  He completed Basic Combat Training (BCT) and Advanced Individual Training (AIT).  Upon graduation, he was awarded military occupational specialty (MOS) 92Y, Unit Supply Specialist.

2.  The applicant was then assigned to Headquarters and Headquarters Company, 1st Battalion, 145th Aviation Regiment, Fort Rucker, Alabama.

3.  The available records indicate the applicant departed in an Absent Without Leave (AWOL) status on 3 occasions and had 2 periods of civil confinement.

4.  On 29 March 2004, a Sanity Board Evaluation found the applicant suffered from a mental condition termed Dysthymic Disorder, but that he was fit to stand trial.

5.  On 2 June 2004, the applicant was convicted a General Court-Martial for being AWOL from 2 July 2001 to 11 April 2002, for being AWOL from 12 April 2002 to 29 December 2003, and for wrongfully stealing letters and packages addressed to another Soldier between the dates of 9 April 2001 and 15 May 2001.  The sentence included forfeiture of all pay and allowances confinement for 2 years and 6 months, and a Bad Conduct Discharge.  He was given credit for 179 days of Pretrial confinement.  The convening authority in accordance with a pretrial agreement approved only so much of the sentence as provides for forfeiture of all pay and allowances, confinement for 16 months, and a Bad Conduct Discharge.


6.  On 15 July 2005, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

7.  On 12 October 2005, the United States Court of Appeals for the Armed Forces denied a petition for further review.

8.  On 9 February 2006, a supplemental General Court-Martial order indicated the sentence was finally affirmed and that part of the sentence pertaining to confinement had been served.  The Bad Conduct Discharge was ordered executed.

9.  On 16 August 2006, the applicant was separated with a Bad Conduct Discharge.  He had 2 years, 9 months, and 23 days of creditable active Federal service and 1229 days of lost time.  Additionally, he had approximately 626 days of excess leave.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge, and provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and the affirmed sentence ordered duly executed.

11.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  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.

13.  The Military Justice Act of 1983 (Public Law 98-209) provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.  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 change a discharge due to matters which should have been raised in the appellate process, rather it is only empowered to change the severity of the sentence imposed in the court-martial process 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 brings argument that should have been made at the time of his court-martial, or during his appellate review.  This Board has no authorization to add or consider documentation that should have been raised in the appellate process.  In any event, it is noted the applicant was given a Sanity Board Evaluation that found him to have a Dysthymic Disorder, but to be fit to stand trial.  Further, defense counsel submitted this evidence for consideration by the military judge at the applicant's trial.

2.  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.

3.  The applicant's official record revealed serious misconduct resulting in conviction by a general court-martial.  The Board noted the applicant's contentions; however, he failed to provide sufficiently mitigating evidence to warrant a change in his discharge.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __rdg___  __rch___  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.




							Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060015255
SUFFIX

RECON

DATE BOARDED
20070614
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
20060816
DISCHARGE AUTHORITY
AR 635-200, Chap 3. . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
105.0000
2.

3.

4.

5.

6.