IN THE CASE OF:	  

		BOARD DATE:	        13 JANUARY 2009

		DOCKET NUMBER:  AR20080018499 


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 the Board's denial of his request that his bad conduct discharge be upgraded to a general discharge, under honorable conditions.

2.  The applicant states, in effect, that we all make mistakes and he wants a chance to reenter military service in an attempt to regain his lost honor.  

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), an Enlisted Record Brief, Statement of Service, three certificates of training, two college transcripts, and a self-authored note in support of this application. 

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 AR20080006068, on 10 July 2008.
 
2.  The three certificates of training, two college transcripts, and the self-authored note provided as evidence with this application were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.


3.  The applicant's records show he enlisted in the Regular Army on 19 January 2000.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 11B (Infantryman).  His records show on 23 January 2003 he reenlisted for a period of three years.  The highest rank he attained while serving on active duty was the grade of specialist/pay grade E-4.

4.  The applicant's records do not show any significant acts of valor during his military service.

5.  Records show the applicant was convicted by a general court-martial for absenting himself on or about 24 March 2004 and remaining in desertion until he was apprehended on or about 17 February 2006.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, General Court-Martial Order Number 116, dated 
4 May 2007, indicates affirmation of the applicant's sentence to reduction to the rank of private/pay grade E-1, confinement for 7 months, and a bad conduct discharge.  The automatic forfeiture of $1,500.00 pay and allowances per month, as required by Article 58b of the Uniform Code of Military Justice, was waived effective 12 June 2006 until 11 December 2006 with direction that those funds be paid to the applicant's spouse.  It further shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed.

6.  On 31 August 2007, the applicant was discharged accordingly under provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  The DD Form 214 the applicant was issued shows he completed 5 years, 3 months, and 6 days of creditable active military service.  Item 24 (Character of Service) of this form shows the entry "Bad Conduct" and item 29 (Dates of Time Lost During This Period) shows the entry "Under USC 972: 20040324-20060217 and 20060530-20061111."

7.  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.

8.  Army Regulation 635-200, paragraph 3-7c, provides that an under other than honorable discharge is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court-martial 
when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army or when the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army, such as the use of force or violence to produce serious bodily injury or death, abuse of a position of trust, disregard by a superior of customary superior-subordinate relationships, acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army, or deliberate acts or omissions that seriously endanger the health and safety of other persons.

9.  Army Regulation 635-200, paragraph 3-11, provides 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that we all make mistakes and his request to have his discharge upgraded so he can reenter the service was carefully considered.

2.  While course completion, college attendance, and his expressed desire to reenter military service are commendable, they are not, in of themselves sufficient to warrant upgrading a properly characterized discharge.

3.  The applicant had lost time due to desertion during the period from 24 March 2004 through 17 February 2006 and confinement during the period from 30 May 2006 through 11 November 2006.  

4.  The applicant was convicted by a general court-martial for the charge of desertion.  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.

5.  The applicant was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  Further, the applicant's discharge accurately reflects his overall record of service.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to an upgrade of his 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 AR20080006068, on 10 July 2008.




      _______ _  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)                                         AR20080018499





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ABCMR Record of Proceedings (cont)                                         AR20080018499



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