IN THE CASE OF:	  

		BOARD DATE:	       14 JULY 2009

		DOCKET NUMBER:  AR20090003615 


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 his earlier request that his General Court-Martial conviction be overturned and that clemency be granted in the form of a general discharge. 

2.  The applicant states that prior to his conviction, he was a good Soldier with no disciplinary problems.  He adds that he realizes that he made a mistake and takes full responsibility for his actions. 

3.  The applicant provides six character reference letters, dated on various dates, from friends and family members, in support of his 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 AR20070017995, on 3 June 2008.

2.  The applicant submitted six character reference letters that 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 for a period of 3 years on 9 September 1997.  He completed basic combat and advanced individual training and was awarded military occupational specialty 77F (Petroleum Supply Specialist).  The highest rank/grade he attained during his military service was private first class/E-3.

4.  On 5 June 2000, the applicant pleaded guilty at a General Court-Martial to one specification of wrongfully distributing approximately 16.01 grams of marijuana on or about 17 December 1999.  He also pleaded not guilty to one specification of making a false statement on or about 25 January 2000 and one specification of conspiring with another Soldier to distribute 7.9 grams of marijuana on or about 20 November 1999; however, both specifications were dismissed.  The Court sentenced him to a forfeiture of all pay and allowances, a reduction to private (PV1)/E-1, confinement for 8 months, and a bad conduct discharge.  The sentence was adjudged on 5 June 2000

5.  On 10 April 2001, the convening authority approved the sentence and except for the bad conduct discharge, ordered it executed.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 26 February 2002, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.  However, the Court modified the Court-Martial Order to reflect the convening authority waived the forfeiture of all pay and allowances, effective 10 July 2000 until 9 October 2000.  

7.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 121, dated 20 February 2003, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge executed.

8.  The applicant was discharged from the Army on 26 September 2003.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a bad conduct discharge.  This form further confirms the applicant completed a total of 5 years, 6 months, and 2 days of creditable active service and had a total of 195 days of lost time. 





9.  The applicant submitted six character reference letters as follows:

	a.  in a character reference letter, dated 10 January 2009, the applicant's spouse describes him as a loving, respectful, and responsible husband and father;

	b.  in a character reference letter dated 9 January 2009, one of the applicant's friends describes him as a devout Christian and a family man who sets the example to his children and others; 

	c.  in a character reference letter, dated 12 January 2009, another friend of the applicant describes him as one of the most spiritual, family oriented and hard-working individuals she has ever known;

	d.  in a character reference letter, dated 12 January 2009, a third friend of the applicant describes him as not only a devoted husband and a role model to others, but also a professional and dependable entrepreneur; 

	e.  in a character reference letter, dated 14 January 2009, a fourth friend of the applicant also describes him as a competent, reliable, and honorable man who exhibits virtue, integrity, and wisdom; and

	f.  in an undated character reference letter, another of the applicant's friends also describes him as a very loving husband and father. 

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a General or a Special Court-Martial.  The appellate review must be completed and the affirmed sentence orderly executed. 

11.  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.

12.  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 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 contention that his General Court-Martial conviction should be overturned and that clemency be granted in the form of a general discharge as well as the character reference letters he submitted were carefully considered; however, they are not sufficiently mitigating to grant him the requested relief.

2.  The applicant was convicted by a General Court-Martial, which was warranted by the gravity of the offense of which he was charged and convicted.  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.

3.  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 modified sentence, including a bad conduct discharge, ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected. 

4.  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 relief. 

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 AR20070017995, dated 3 June 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)                                         AR20090003615



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ABCMR Record of Proceedings (cont)                                         AR20090003615



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