IN THE CASE OF:	  

		BOARD DATE:	         23 July 2009

		DOCKET NUMBER:  AR20090002664 


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 an earlier request that his bad conduct discharge be upgraded.

2.  The applicant states that he is not guilty of the charges, that he pled not guilty but was found guilty, and that he served his time and all should be forgiven. 

3.  The applicant provides service personnel records; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); and a letter, dated 
17 February 2009, from a Member of Congress in support of his 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 AR20080000479, on 22 May 2008.

2.  The applicant's arguments are new and will be considered by the Board.

3.  The applicant enlisted in the Army National Guard on 2 August 1975 for a period of 6 years.  He trained as a supply clerk.  The applicant failed to attend required unit training assemblies and was ordered to active duty on 5 July 1977 as an unsatisfactory participant for a period of 19 months and 23 days.  

4.  On 10 November 1977, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a reduction to E-1 (suspended) and a forfeiture of pay. 

5.  On 19 October 1978, contrary to his pleas, the applicant was convicted by a general court-martial of larceny and unlawfully entering a supply storage area with intent to commit a criminal offense (larceny).  He was sentenced to be reduced to E-1, to be confined at hard labor for 2 years, to forfeit two-thirds pay per month for 2 years, and to be discharged from the service with a bad conduct discharge.  On 8 January 1979, the convening authority approved the sentence.

6.  The decision of the U.S. Army Court of Military Review is not available.  However, on 9 January 1980, the convening authority ordered the bad conduct discharge to be executed, indicating the sentence was affirmed.

7.  Accordingly, the applicant was discharged with a bad conduct discharge on 
7 May 1980 under the provisions of Army Regulation 635-200, chapter 
11, as a result of a court-martial.  He had served a total of 1 year, 3 months, and 14 days of creditable active service with 567 days of lost time due to confinement. 

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, 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.

9.  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.  

10.  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.



11.  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 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 contentions that he is not guilty of the charges relate to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his general court-martial and appellate proceedings.

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's record of service included one nonjudicial punishment, one general court-martial conviction, and 567 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 AR20080000479, dated 22 May 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)                                         AR20090002664





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ABCMR Record of Proceedings (cont)                                         AR20090002664



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