IN THE CASE OF:	   

		BOARD DATE:	        20 November 2008

		DOCKET NUMBER:  AR20080015364 


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 reconsideration of an earlier request that his bad conduct discharge be upgraded to honorable. 

2.  The applicant states that he is providing a statement from his (current) wife that was not considered by the Board and that he previously gave a wrong date that he caught his ex-wife cheating on him.  It was 2000, not 2003.  He contends that catching his ex-wife cheating on him was what caused him to get into trouble.  He also contends that he was a good Soldier up to that point and that if the Army had helped him with his marital problems and mental state at the time it would have saved his career.  

3.  The applicant provides a character reference letter, dated 4 August 2008, from his wife.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060008193 on 26 July 2007.

2.  The applicant provided a character reference letter, dated 4 August 2008, from his (current) wife.  In summary, she states that her husband served honorably from 1996 to 2001, that he had marital problems, that when he 
separated from his wife he fell in with the wrong crowd, and that he was convicted of drug-related charges in 2002.  She goes on to state that the applicant began drinking and using drugs to deal with his wife cheating on him and that he was made an example of by the Army.  She also states that the applicant has built a career in construction management, that they were married in 2005, that they bought their first home in 2007, and that they have a baby.  In closing, she indicates that the applicant has learned from his mistakes that he made during the six month period that ruined his Army career and that he regrets them very much. 

3.  The applicant’s wife’s statement is new evidence which will be considered by the Board.

4.  On 23 August 1996, the applicant enlisted in the Regular Army for 5 years.  He completed his initial training and was awarded military occupational specialty 35D (air traffic control equipment repairer).  He was honorably discharged on 
7 March 2001 for immediate reenlistment.  He reenlisted on 8 March 2001.

5.  On 21 February 2002, in accordance with his pleas, the applicant was convicted by a general court-martial of violating a lawful regulation by possessing drug paraphernalia, possessing methamphetamine, and using methamphetamine.  He was sentenced to be reduced to E-1, total forfeitures, confinement at hard labor for 7 months, and a bad conduct discharge.  In accordance with a pretrial agreement, confinement was limited to 6 months.

6.  On 16 January 2004, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 21 May 2004, the United States Court of Appeals for the Armed Forces denied applicant's petition for grant of review.

7.  On 3 June 2004, the convening authority ordered the bad conduct discharge to be executed.  

8.  It appears the applicant was discharged with a bad conduct discharge on 
16 July 2004 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) erroneously shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct.  He had served a total of 7 years and 6 months of creditable active service with 144 days of lost time due to confinement. 


9.  There is no evidence of record which shows the applicant was diagnosed with alcohol/drug abuse or dependency or any mental condition prior to his discharge. 

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  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.  

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.  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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his marital problems within established Army procedures or that he sought assistance for an alcohol/drug problem.  In addition, there is no evidence of record which shows he was diagnosed with any mental condition.    

2.  The character reference letter submitted on behalf of the applicant fails to show that his discharge was unjust and should be upgraded.

3.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  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.

5.  The applicant's record of service included one general court-martial conviction for serious drug offenses and 144 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

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 to amend the decision of the ABCMR set forth in Docket Number AR20060008193, dated 26 July 2007.



      _________XXX_____________
               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)                                         AR20080015364





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ABCMR Record of Proceedings (cont)                                         AR20080015364



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