RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 January 2008
      DOCKET NUMBER:  AR20070010271


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. David K. Hassenritter         |     |Chairperson          |
|     |Mr. James R. Hastie               |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 (BCD).

2.  The applicant states, in effect, that the incident that caused his BCD
was the only one he had in his 5 years of service.  He states that he got
in with a bad crowd and now regrets it.

3.  The applicant provides the following documents in support of his
application:  Certificate of Quality; Advanced Individual Training
Completion Certificate; TOW Special Weapons Training Certificate; Expert
Infantryman Training Certificate; and 5 Third-Party Character References.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 22 August 2000.  He was trained in and awarded
military occupational specialty (MOS) 11B (Infantryman), and specialist was
the highest rank he attained while serving on active duty.

2.  The applicant's Enlisted Record Brief (ERB) shows that after he
completed infantry training at Fort Benning, Georgia, he was assigned to
Fort Bragg, North Carolina.  His record shows that during his active duty
tenure, he earned the National Defense Service Medal and Army Service
Ribbon.  His record documents no acts of valor, significant achievement, or
service warranting special recognition.

3.  On 5 January 2004, a General Court-Martial (GCM) found the applicant
guilty, pursuant to his pleas, of two specifications of violating Article
121 of the Uniform Code of Military Justice (UCMJ) by stealing United
States currency of a value of over $500.00 from another Soldier and by
wrongfully appropriating the privately owned vehicle of another Soldier
valued at $9,000.00.  The resultant sentence issued by the Military Judge
was confinement for 12 months, reduction to private/E-1 (PV1), and a BCD.

4.  Headquarters, 82nd Airborne Division GCM Order Number 9, dated 1 July
2004, shows the GCM convening authority approved only so much of the
applicant's sentence that provided for a BCD, confinement for 4 months, and
reduction to PV1.

5.  On 23 November 2004, the United States Army Court of Criminal Appeals,
on consideration of the entire record, held the findings of guilty and the
sentence as approved by the convening authority correct in law and fact.
Accordingly, those findings of guilty and the sentence were affirmed.  The
court changed the end dates for Specifications 1 and 2 of the charge to
conform the findings to the providence inquiry and as a result corrected
the original GCM Order by:  deleting in line one of Specification 1 of The
Charge the date "24 August" and substituting therefor the date "28
February"; and deleting in line one of Specification 2 of The Charge the
date "24 August" and substituting therefor the date "26 May."

6.  On 10 March 2005, GCM Orders Number 39, issued by Headquarters, United
States Army Armor Center and Fort Knox, Fort Knox, Kentucky, directed that,
the provisions of Article 71(c) of the UCMJ having been complied with, the
BCD portion of the applicant’s approved sentence would be duly executed.
On
29 April 2005, the applicant was discharged accordingly.  The separation
document (DD Form 214) issued to the applicant at the time shows he
completed a total of 4 years, 4 months, and 29 days of creditable active
military service and that he accrued 98 days of time lost due to
confinement.

7.  The applicant provides two statements from noncommissioned officers
(NCOs) that were submitted in support of his appeal.  These statements
attested to the applicant's good performance record and while not condoning
his actions, suggested he had rehabilitative potential.  He also provides
supporting statements from his wife, his mother and father, and from his
father-in-law, who all attest to his good post-service conduct and his
commitment to his family.

8.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides the policies and
procedures for separating members with a dishonorable or bad conduct
discharge.  It stipulates, in pertinent part, that a Soldier would be given
a BCD pursuant only to an approved sentence of a general or special court-
martial, and that the appellate review must be completed and affirmed
before the sentence is ordered duly executed.

9.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded
because the incident that led to his BCD was the only infraction he
incurred in his almost
5 years of service; because he regrets his actions; and based on his post-
service conduct, as attested to in the supporting statements he provides,
were carefully considered.  However, these factors are not sufficiently
mitigating to support granting the requested relief.

2.  By law, any redress by this Board of the finality of a court-martial
conviction, after 1949 under the UCMJ, 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.

3.  The evidence does show that the applicant had a relatively clean record
of service prior to committing the offenses that led to his BCD.  However,
his record documents no acts of valor, significant achievement, or service
warranting special recognition.  Further, although his expressions of
regret and his post-service conduct are noteworthy, these factors alone are
not sufficiently mitigating to support an upgrade of his discharge at this
time, given the severity of the offenses for which he was convicted.
Therefore, there is an insufficient evidentiary basis to support clemency
in this case.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
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

__DKH __  __JRH __  __EEM__  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.




                                  _____David K. Hassenritter___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070010271                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/01/25                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |2005/04/29                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |GCM BCD                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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