IN THE CASE OF:	  

		BOARD DATE:	         30 April 2009

		DOCKET NUMBER:   AR20080018624 


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, reconsideration of his earlier request that his discharge be upgraded to honorable.  He is also requesting to be retired and that his rank and pay grade be corrected.  

2.  The applicant states that his discharge was inequitable because it was based on one isolated incident in 15 years of outstanding military service without any other adverse action.

3.  The applicant provides a self-authored statement, a DD Form 214 (Certificate of Release or Discharge from Active Duty), a Department of Veterans Affairs (DVA) rating decision, two statements of support, Medical Evaluation Board (MEB) proceedings, Physical Evaluation Board (PEB) proceedings, 
Noncommissioned Officer Evaluation Reports, Service School Academic Evaluation Reports, a DA Form 2-1 (Personnel Qualification Record), award orders and certificates, and a medical record 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 AR20040009926, on 13 September 2005.

2.  The applicant provides additional documents and issues which were not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 1 September 1983.  He served on active duty for 15 years, 11 months, and 5 days.

4.  On 4 March 1998, the applicant was convicted by a general court-martial of one specification of violating a lawful general regulation, six specifications of making a false official statement, and thirteen specifications of larceny by credit card (first offense in July 1995, last offense in February 1997) in the total amount of $27,667.85.  He was sentenced to be discharged with a bad conduct discharge, to be confined for 7 months, to forfeit all pay and allowances, and to be reduced to private (PV1)/E-1.

5.  The applicant served his sentence to confinement and on 17 June 1999, General Court-Martial Order Number 115, Headquarters, U.S. Army Armor Center, Fort Knox, KY directed that the bad conduct discharge be duly executed. On 16 February 2000, the applicant was discharged with a bad conduct discharge.

6.  The applicant provided a self-authored statement which states, in effect, he regrets the bad decisions he made and that he has lived a productive life since his discharge.

7.  The DVA rating decision provided by the applicant shows he was granted 
10 percent service-connected disability for post-operative degenerative joint decease of the left knee.

8.  The applicant provided an undated statement of support which states, in effect, the applicant suffers from a knee condition which hinders his day-to-day activities.

9.  The applicant provided another statement of support, dated 23 September 2008, which states, in effect, the applicant is a member of the church, is living a productive life, and is a positive influence for the youth in their community.

10.  The applicant provided Noncommissioned Officer Evaluation Reports which show he had successful ratings from 1990 through 1996.

11.  The applicant provided Service School Academic Evaluation Reports which show he completed the Primary Leadership Development Course and the Basic Noncommissioned Officer Course. 

12.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR 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.

13.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel, 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.

14.  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.  

15.  Army Regulation 635-200, chapter 12, establishes policy and prescribes procedures for retiring enlisted Soldiers for length of service.  It states that a Soldier who has completed 20, but less than 30, years of AFS may, at the discretion of the Secretary of the Army, be retired at his or her request.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded has been carefully reviewed and found to be without merit.

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 discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant contends his discharge was inequitable because it was based on one isolated incident.  However, his court-martial record shows he was found guilty of a total of 20 separate acts of indiscipline commencing in July 1995 until July 1998.  
4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  The applicant also contends he has been a productive citizen since his discharge.  He is commended for the manner in which he has lived his life following his discharge; however, it is not sufficient to warrant the relief requested.

6.  The applicant also requests that he be retired.  However, he did not complete the required length of service to qualify for a military retirement.

7.  In reference to the applicant's request to have his rank and pay grade corrected, records show he was separated in the rank of private/E-1 as a result of reduction by the court-martial.  Therefore, there is no basis to change the applicant's rank or pay grade.

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 AR20040009926, dated 13 September 2005.



      __________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)                                         AR20080018624



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018624



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1