IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080015905 


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, in effect, an upgrade of his discharge.

2.  The applicant states that the clemency document states that all of his punishment would be enforced except for his bad conduct discharge. 

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 6 August 2008.

	b.  DA Form 4187 (Personnel Action), dated 15 January 2008.

	c.  Headquarters, 21st Theater Sustainment Command, General Court-Martial Order Number 6, dated 18 July 2007.

	d.  Self-authored statement, dated 29 September 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 5 years on 7 September 1999.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  His records also show he executed a 3-year enlistment on 17 December 2004.  He was also reclassified to MOS 31B (Military Police) and attained the rank of sergeant.

2.  The applicant's records show he was awarded the Joint Meritorious Unit Commendation, the Good Conduct Medal (2nd Award), the National Defense Service Medal, the Global War on Terrorism Service Medal, the Noncommissioned Officers Professional Development Ribbon, the Army Service Ribbon, and the Overseas Service Ribbon (2nd Award).  

3.  On 28 August 2006, the applicant accepted punishment under the provisions of Article 15 of the Uniform Code of Military Justice for violating a general regulation by wrongfully using his government charge card for personal use on or about 14 October 2005 and violating a general regulation by wrongfully using a government cell phone on one or more occasion(s) between on or about 1 March 2006 and on or about 29 March 2006.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

4.  On 24 May 2007, the applicant pled not guilty at a General Court-Martial to one specification of wrongfully introducing some amount of methamphetamine onto installations used by the armed forces and one specification of wrongfully distributing approximately 6 pills of methamphetamine, on or about 1 December 2007.  He also pled guilty to one specification of wrongfully introducing a marijuana smoking device onto a military installation and selling it to Ms. S.K., on or about 1 December 2006, one specification of wrongfully introducing some amount of marijuana onto an installation used by the armed forces, on or about 1 December 2006, and four specifications of wrongfully distributing some amount of marijuana on divers dates.  The Court found the applicant guilty or not guilty in accordance with his pleas and sentenced him to confinement for 10 months and a bad conduct discharge.  The sentence was adjudged on 24 May 2007.

5.  On 18 July 2007, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed.  

6.  On 31 October 2007, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

7.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, General Court-Martial Order Number 59, dated 13 March 2008, shows that the sentence to a bad conduct discharge, adjudged on 24 May 2007, has been finally affirmed and that the bad conduct discharge would be executed.

8.  The applicant was discharged from the Army on 6 August 2008.  The DD Form 214 he was issued shows that he was discharged under the provisions of chapter 3 of Army Regulation (AR) 635-200 (Personnel Separations) as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 8 years and 3 months of creditable military service and had 245 days of lost time.  

9.  The applicant submitted a self-authored statement, dated 29 September 2008, in which he states that his DD Form 214 is incorrect because the clemency document is different from the original orders to Fort Knox, Kentucky, and that the character of service is determined by where the DD Form 214 is mailed from. Had he received his DD Form 214 before he left the installation at Fort Knox, Kentucky, he would not be submitting an application to this Board.

10.  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.

11.  AR 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.

12.  AR 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was convicted by a General Court-Martial, which was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  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.

2.  When the convening authority approved the adjudged sentence, he ordered the punishment to be executed, except for the bad conduct discharge.  Prior to executing a bad conduct discharge, unless a Soldier waives an appellate review, a Soldier is entitled to a review by the U.S. Army Court of Criminal Appeal that considers the entire record and determines if the findings of guilty and the sentence as approved by the convening authority are correct by law and fact.  This process is called affirmation.  Once other adjudged punishment(s) (forfeiture, confinement, hard labor, etc) is/are served and the sentence is affirmed, the bad conduct discharge is executed.  

3.  After a review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to an honorable or a general 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 for correction of the records of the individual concerned.



      _______ _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)                                         AR20080015905



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015905



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1