IN THE CASE OF:	  

		BOARD DATE:	  28 April 2009

		DOCKET NUMBER:  AR20090002634 


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 petition for an upgrade of his bad conduct discharge (BCD) to an under other than honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, he would like an upgrade of his BCD so he can go on with his life.

3.  The applicant provides a self-authored letter as new evidence/argument in support of his reconsideration request.

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 AR20080014625, on 30 December 2008.

2.  The applicant provides a self-authored letter as new evidence/argument to support his reconsideration request.  In his letter, the applicant states that he has already submitted an application, but was wondering about the review process for his military conviction in order to upgrade his discharge.  He requests, if it is at all possible, that his conviction be vacated or set aside so he can go on with his life.  He also requests that he be provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

3.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 3 June 1997, and was trained in and awarded military occupational specialty 11B (Infantryman).  His record shows that during his active duty tenure, he earned the Army Service Ribbon.  His record documents no acts of valor, significant achievement or service warranting special recognition.

4.  On 16 September 1998, a general court-martial (GCM) found the applicant guilty of conspiring to commit a burglary, wrongful use of lysergic acid diethylamide [LSD], wrongful use of marijuana, four specifications of larceny, three specifications of making bad checks, unlawful breaking and entering a barracks room, unlawfully influencing a witness, and breaking restriction.  The resulting approved sentence was forfeiture of all pay and allowances, 30 months of confinement, and a BCD.

5.  On 27 June 2003, subsequent to his GCM conviction being affirmed through the appellate process, the applicant was discharged with a BCD after completing 1 year, 2 months, and 19 days of creditable active military service and accruing 4 years, 9 months, and 12 days of time lost due to confinement.

6.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the BCD portion of the sentence is ordered duly executed.

7.  Army Regulation 635-200 states that a discharge UOTHC 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.

8.  Paragraph 3-7b of Army Regulation 635-200 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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his BCD be upgraded so that he can move on with his life was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.

3.  The evidence of record shows no error or injustice related to the applicant’s GCM conviction and/or his subsequent BCD.  The record reveals no acts of valor, significant achievement, or service warranting special recognition.  Therefore, given the gravity of the offenses the resulted in his GCM conviction and BCD and based on his short and undistinguished record of service, there is an insufficient evidentiary basis to support clemency in this case.

4.  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 new evidence or argument that would satisfy this requirement or that would support amending the original Board recommendation in this case.

5.  The applicant is advised that a copy of his DD Form 214 was enclosed with the original Record of Proceedings prepared on his case and an additional copy with be included with this decisional document.

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 AR20080014625, dated 30 December 2008.



      __________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)                                         AR20090002634



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ABCMR Record of Proceedings (cont)                                         AR20090002634



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