IN THE CASE OF:	  

		BOARD DATE:	        8 January 2009

		DOCKET NUMBER:  AR20080013107 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his bad conduct discharge be upgraded to honorable.

2.  The applicant states that he served honorably during the period from 2 May 2002 to 16 June 2003.  He contends that even though he was court-martialed on 17 June 2003, his character of service was never dishonorable. 

3.  The applicant provides a memorandum from the Records Custodian, Personnel and Support Battalion, Fort Sill, Oklahoma, dated 9 January 2004, showing that his character of service from 2 May 2002 to 16 June 2003 was honorable.  It also shows that he was in confinement as of 17 June 2003 as a result of a general court-martial. 

CONSIDERATION OF EVIDENCE:

1.  On 2 May 2002, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

2.  On or about 16 September 2002, he was assigned for duty in the Federal Republic of Germany.



3.  On 17 January 2003, charges were preferred under the Uniform Code of Military Justice (UCMJ).  They were subsequently amended on 28 March 2003, 16 April 2003, 17 April 2003, 15 May 2003, 16 June 2003, and 17 June 2003.  Charge I (one specification) was for violation of Article 86, by being absent without leave (AWOL).  Charge II (one specification) was for violation of Article 90, by willfully disobeying a lawful command from a commissioned officer.  Charge III (one specification) was for violation of Article 128, by assault.  Charge IV (one specification) was for violation of Article 134, by wrongfully communicating a threat.

4.  On 17 June 2003, before a military judge at a General Court-Martial, the applicant pled not guilty to all charges and specifications.

5.  The military judge found him guilty of Charge I and its specification.  With respect to Charge I and its specification, after pleas but prior to findings, the military judge amended this specification by excepting the words and figures, "8 January 2003," substituting therefor the words and figures, "6 January 2003," based on an unopposed government motion.  The military judge found him guilty of Charge II and its specification.  With respect to Charge II and its specification, the military judge found him not guilty of the excepted words, "at or" and "Schweinfurt."  The military judge found him guilty of Charge III and its specification.  With respect to Charge III and its specification, the military judge found him not guilty of the excepted words, "attempting to strike her with a force or means likely to produce death or grievous bodily harm, to wit:  threatening to kill her and."  The military judge found him not guilty of Charge IV and its specification.  The applicant was sentenced to a reduction to pay grade E-1, 24 months of confinement, and a bad conduct discharge.

6.  On 31 October 2003, the Staff Judge Advocate, in a written review for the convening authority, summarized the charges, pleas, and findings.  The Staff Judge Advocate summarized the applicant's record of service.  He further advised the convening authority that the military judge had awarded the applicant a total of 106 days of confinement credit.  The Staff Judge Advocate recommended approval of the sentence.   

7.  On 27 January 2004, the trial defense counsel requested that the convening authority disapprove the findings and sentence.  Counsel contended that the court erred by failing to dismiss Charge II as an unreasonable multiplication of charges with Charge I.  Counsel also contended that the court erred in its finding of guilt for the lesser included offense of Charge III, assault by breaking down the front door and attempting to break down the bathroom door.  Counsel also stated that the military judge should have combined Charge I and Charge II for sentencing since both offenses arose from the same act.  Counsel also contended that the military judge did not take into consideration the conditions of the applicant's pretrial restriction as a mitigating factor against a lengthy period of confinement.  Counsel requested disapproval of the findings and sentence because they would lead to the applicant's deportation from the United States.  Counsel contends that the court-martial was not appropriate for the offenses.  The applicant had served 106 days in confinement, 61 days of pretrial restriction, and 225 days of post-trial confinement for findings of guilty for a 7-day AWOL, willfully disobeying a commissioned officer, and for simple assault on his spouse.

8.  On 3 February 2004, the Staff Judge Advocate, in an addendum to his written review for the convening authority, summarized the defense counsel's request for clemency.  The Staff Judge Advocate disagreed with all of the defense counsel's allegations of legal error and recommended that the convening authority approve the sentence as adjudged.

9.  On 4 February 2004, the convening authority approved the sentence and, except for that part extending to a bad conduct discharge, ordered it executed.  The convening authority credited the applicant with 106 days of confinement against the sentence to confinement.

10.  On 18 August 2006, the United States Army Court of Criminal Appeals reviewed the entire record and held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.  Accordingly, it affirmed the finding of guilty and the sentence as approved.

11.  General Court-Martial Order Number 228, United States Army Field Artillery Center and Fort Sill, dated 23 August 2007, provided that the sentence to reduction to pay grade E-1, confinement of 24 months, and a bad conduct discharge, adjudged on 17 June 2003, had been affirmed.  The applicant was credited with 106 days of confinement against the sentence to confinement.  Article 71(c), UCMJ, having been complied with, the bad conduct discharge was to be executed.

12.  The applicant's DD Form 214 shows that he was discharged on 29 January 2008, under the provisions of Army Regulation 635-200, chapter 3, and received a bad conduct characterization of service.

13.  Army Regulation 635-200 governs the separation of enlisted personnel.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

14.  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.

15.  In accordance with Title 10, U. S. 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that even though he was court-martialed on 17 June 2003, his character of service was never dishonorable.  The evidence of record indicates otherwise.

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 final discharge appropriately characterized the misconduct for which the applicant was convicted.  The applicant has established no basis for clemency.

3.  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 the aforementioned requirement.

4.  In view of the above, the applicant's request should be denied.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ____X__  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.



      _________X_________________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080013107



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ABCMR Record of Proceedings (cont)                                         AR20080013107



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