RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20070012196 


	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

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Chester A. Damian

Member

Mr. Qawiy A. Sabree

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 discharge be upgraded to an honorable discharge.

2.  The applicant states that his original discharge was supposed to be honorable. 

3.  The applicant provides copies of two DD Forms 214 (Certificate of Release or Discharge from Active Duty), and General Court-Martial Order Number 246, dated 27 November 2006 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Department of the Army U.S. Army Reserve Personnel Command, St. Louis, Missouri, Orders R-10-000089, dated 7 January 1999, shows the applicant was to report for temporary duty from 24 January 1999 through 5 February 1999 on his three year active duty commitment in the Active Guard/Reserve status for a period of 3-years.

2.  The applicant's military record shows that he enlisted in the United States Army Reserve (USAR) on 24 January 1999.  He was trained in, awarded, and served in military occupational specialty (MOS) 88M (Motor Transport Operator). The highest rank he attained while serving on active duty was staff sergeant/pay grade E-6.  

3.  Headquarters, 108th Division (Institutional Training), Charlotte, North Carolina Orders A-274-03, dated 1 October 1999, shows that the applicant was transferred to the Active Guard Reserve Control Group at the U.S. Army Reserve Personnel Command, St. Louis, Missouri on 23 January 1999.  

4.  The complete facts and circumstances of the applicant's discharge are not available for review with this case; however, there are sufficient records to make a fair and impartial decision.

5.  The applicant's records reveal a disciplinary history that shows on 10 December 2000, the Brigadier General in command of the Headquarters, 108th Division (Institutional Training), Charlotte, North Carolina, imposed a reprimand for misconduct for repeated failure to pay his Bank of America Government Travel Visa account, for his clear misuse of that account for other than official expenses, for his failure to obey lawful orders, and conduct prejudicial to good order and discipline.  
6.  On 21 June 2001, the applicant was notified of pending separation under the provisions of Army Regulation 635-200 (Personnel Separations) paragraph 
14-12c, for misconduct.  The applicant's commanding officer further stated that the reason for the pending separation from the Army was for his failure to follow a lawful order when he misused his government travel credit card by making personal purchases, by wrongfully failing to pay his debt, and finally submitting checks on a closed account to pay his debt.  The applicant was also informed that he could receive an honorable discharge, a general discharge under honorable conditions or a separation under other than honorable conditions.  The applicant acknowledged receipt of the memorandum.

7.  On 18 November 2001, the applicant was given notification that he would be required to appear before a board of officers to determine whether or not he should be discharged before the expiration of his current term of service because he failed to follow a lawful order when he misused his government travel credit card by making personal purchases, wrongfully failing to pay his debt, submitting checks on a closed account pay his debt, using multiple Social Security number's, and writing checks both without sufficient funds and on a closed account to Army and Air Force Exchange Service (AAFES).

8.  On 21 November 2001, the applicant was notified of pending separation under the provisions of Army Regulation 635-200 (Personnel Separations) paragraph 14-12c, for misconduct.  The applicant's commanding officer further stated that the reason for the pending separation from the Army was for his failure to follow a lawful order when he misused his government travel credit card by making personal purchases, by wrongfully failing to pay his debt, and finally submitting checks on a closed account to pay his debt.  On 29 November 2001, the applicant's intermediate commander concurred with the recommendation.

9.  On 8 December 2001, a memorandum from Headquarters, 108th Division (IT), Charlotte, North Carolina, shows that the applicant was notified that his case would be referred to an Administrative Separation Board for determination to consider whether he should be discharged under the provisions of Army Regulation 635-200, chapter 14-12c.

10.  On 12 December 2001, the Department of the Army, U.S. Army Reserve Personnel Command, St. Louis, Missouri, issued Orders D-12-0800190 to effectively discharge the applicant from the USAR on 23 January 2002.



11.  The applicant's record contains a DD Form 214, which shows that the applicant was to be separated on 23 January 2002, under the provisions of chapter 4 of Army Regulation 635-200 for completion of required active service and furnished an honorable discharge.  On 15 January 2002, the General Court Martial Convening Authority approved an involuntary extension of the applicant on active duty for UCMJ purposes.  This action effectively revoked the Orders 
D-12-0800190 and the DD Form 214 dated 23 January 2002.  

12.  On 17 February 2002, a memorandum from the Department of the Army, Office of the Staff Judge Advocate, Fort Jackson, South Carolina, shows a summary of the applicant's offenses/pleas/findings: on 30 May 2002, the applicant pled guilty at a General Court-Martial to three specifications of willfully disobeying a lawful command of his superior commissioned officer during the period 1 September 199 through 31 January 2000; 1 February 2002 through 30 June 2000; and from 1 July 2000 through 30 November 2000; 1 February 2000 through 30 June 2000; and from 1 July 2000 through 30 November 2000; and of six specifications of making, drawing, or uttering check, draft, or order without sufficient funds during the period 12 January 1999 through 30 March 1999; 5 April 1999 through 10 May 1999; 3 June 1999 through 17 August 1999; 19 August 1999 through 21 November 1999; 1 November 1999 through 31 January 2000; and 1 March 2000 through 30 November 2000.  The Court sentenced the applicant to forfeit all pay and allowances, reduction to the rank of private/pay grade E-1, confinement for 3 years, and 7 months, and a bad conduct discharge.  The convening authority, acting pursuant to a pretrial agreement, reduced the confinement to 11 months.

13.  Department of the Army, Headquarters, United States Army Armor Center, For Knox, Kentucky General Court-Martial Order Number 246, dated 27 November 2006, announced the applicant's sentence having been affirmed, and the provisions of Article 71c having been complied with, that the bad conduct discharge would be duly executed.  

14.  The applicant's DD Form 214 shows he was discharged as a result of court-martial on 27 November 2006, under the provisions of Army Regulation 635-200 with the separation code JJD and the Reentry code RE-4.  This form further shows the applicant's character of service as bad conduct.  This DD Form 214 also shows the applicant had 1941 days of time lost due to confinement during his military service.  



15.  Item 18 (Remarks) of the applicant's DD Form 214 shows //EXTENSION OF SERVICE WAS AT THE REQUEST AND FOR THE CONVENIENCE OF THE GOVERNMENT//RETAINED IN SERVICE 1941 DAYS FOR THE CONVENIENCE OF THE GOVERNMENT PER AR 635-200.

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

17.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Paragraph 2-1, states, in pertinent part, that the DD Form 214, is a summary of the Soldier's most recent periods of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service, (a) except as provided in paragraph b: a DD Form 214 will not be prepared for the following soldiers:  (1) Whose active duty or FTNGD tour ends because of death or other reasons specified in AR 680-29. (2) Enlisted soldiers discharged for immediate reenlistment in the RA. (3) Removed from the TDRL. (4) Found disqualified on reporting for active duty and who do not enter actively upon duties per orders.  (5) On active duty terminating their RC status to integrate in the RA. (6) AGR and other RC soldiers who are entering on extended active duty for a specific period of time and are retained beyond their initial contractual release date without a break in active duty. (7) Separated from active duty and were furnished a prior edition of DD Form 214, unless that form must be reissued for some other reason.  Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority.  Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.

18.  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.

19.  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.

20.  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:

1.  The applicant's contention that his discharge should be upgraded because he was issued a DD Form 214, dated 23 January 2002 which shows he was issued an honorable discharge was carefully considered and determined to be without merit.  

2.  Records show the applicant was issued a DD Form 214 on 23 January 2002 for completion of required active service.  However, at the time of the issuance of this separation document, the applicant was under going disciplinary action.  As a result of the applicant's misconduct, his active service time was extended to complete the General Court-Martial proceedings.  Therefore, it is determined that the 23 January 2002 DD Form 214 was created in error.

3.  The applicant's record of service shows that he was tried and convicted by a general court-martial of three specifications of willfully disobeying a lawful command of his superior commissioned officer, and six specifications of making, drawing, or uttering check, draft, or order without sufficient funds.

4.  Essentially, the applicant claims he was discharged with an honorable discharge on 23 January 2002 and, therefore, his court-martial lacked jurisdiction.  This claim lacks merit.  The proper time for raising jurisdictional issues was during his trail.  The ABCMR may not upset the finality of that proceeding.
5.  The available record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

6.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The severity of the applicant's misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

7.  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.  

8.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JTM____  _QAS_  _CAD_____  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.





_John T. Meixell_
          CHAIRPERSON





INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
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.