IN THE CASE OF:	  

		BOARD DATE:	       9 December 2008

		DOCKET NUMBER:  AR20080014290 


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, in effect, that he believes his appeal rights were denied because he has not received any notification of the outcome of his appeal.

3.  The applicant provides no additional documentation. 

CONSIDERATION OF EVIDENCE:

1.  On 23 February 2001, the applicant enlisted in the Regular Army for 5 years.  He completed his initial training and was awarded military occupational specialty (MOS) 55B (Ammunition Specialist).

2.  On 21 August 2002, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 (two specifications) for being absent without leave (AWOL) from 8 to 22 February 2002 and from 8 to 11 July 2002; for violation of Article 91 (three specifications) for being disrespectful in language and deportment towards three different noncommissioned officers; and for violation of Article 121 (two specifications) for stealing two cellular telephones and for communicating a threat to destroy a building by means of a bomb.



3.  On 3 October 2002, additional charges were preferred under the UCMJ for violation of Article 86 (three specifications) for being AWOL on 2 July 2002, 
3 and 10 September; for failing to go to his appointed place of duty; and for violation of Article 91 (one specification) for willfully disobeying a lawful order.

4.  On 8 October 2002, additional charges were preferred under the UCMJ for violation of Article 86 (two specifications) for AWOL on or about 26 and 
27 September 2002 and on or about 8 October 2002; for failing to go to his appointed place of duty; and for violation of Article 112a (one specification) for wrongful use of marijuana on or about 19 August and 30 September 2002.

5.  On 28 October 2002, additional charges were preferred under the UCMJ for violation of Article 112a, the wrongful distribution of a schedule I controlled substance (ecstasy) on or about 19 August and 30 September 2002.

6.  On 9 January 2003, before a military judge at a General Court-Martial, the applicant pled guilty to all specifications and charges, in accordance with a pre-trial agreement stating that he would not be confined for a period of more than 
19 months. 

7.  The military judge found him guilty of all charges and specifications.  In a specification of disrespect to a noncommissioned officer, the specification was changed by excepting the words, "on divers occasions" and except the words, "by replying to...or words to that effect, on or about 26 November 2001, and."  The applicant was sentenced to a reduction to pay grade E-1, 28 months confinement and a bad conduct discharge.

8.  On 26 March 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 reminded the convening authority of the pretrial agreement to disapprove any confinement in excess of 19 months.  He further advised the convening authority that the military judge had granted the applicant a total of 119 days credit for confinement due to violation of the rule for court-martial (R.C.M.) 305 (Pretrial Confinement); for restriction tantamount to confinement; and for pretrial confinement.  The Staff Judge Advocate recommended approval of the sentence.   

9.  On 15 May 2003, the convening authority approved the sentence, and except for that part extending to a bad conduct discharge, ordered it executed.  Effective 23 April 2003, the automatic forfeitures were waived for a period of 6 months and directed that they be paid to the wife of the accused.  The accused was to be credited with 119 days of confinement against the sentence to confinement. 

10.  On 23 December 2005, 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 correct in law and fact.  Accordingly, it affirmed the finding of guilty and the sentence as approved.

11.  General Court-Martial Order Number 212, United States Army Field Artillery Center and Fort Sill, dated 10 August 2006, provided that the sentence to reduction to pay grade E-1, confinement of 19 months, and a bad conduct discharge, adjudged on 9 January, had been affirmed.  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 
15 May 2007, under the provisions of Army Regulation 635-200, Chapter 3, and received a bad conduct characterization of service.  

13.  Court-martial convictions stand as adjudged or modified by appeal through the judiciary 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 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.

14.  Army Regulation 635-200, governs the policies and procedures for 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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.  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.

2.  There is no available evidence showing that the applicant’s appeal rights were denied.

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)                                         AR20080014290



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ABCMR Record of Proceedings (cont)                                         AR20080014290



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