IN THE CASE OF:
BOARD DATE: 30 June 2009
DOCKET NUMBER: AR20090003636
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 that his bad conduct discharge be upgraded.
2. The applicant states that he made a bad decision and that he feels he could change his life if given the opportunity.
3. The applicant provides three character reference letters and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 28 January 2003 for a period of 4 years. He trained as a health care specialist and was honorably discharged on 24 August 2005 for immediate reenlistment. He reenlisted on 25 August 2005 for a period of 4 years.
2. On 28 July 2006, in accordance with his pleas, the applicant was convicted by a general court-martial of distributing cocaine, distributing four tablets of
methylenedioxymethamphetamine (MDMA) (commonly known as Ecstasy), and using MDMA. He was sentenced to be reduced to E-1, to be confined for
24 months, and to be discharged from the service with a bad conduct discharge. On 17 November 2006, the convening authority approved only so much of the sentence as provided for a reduction to E-1, confinement for 10 months, and a bad conduct discharge.
3. On 25 June 2007, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.
4. On 12 October 2007, the convening authority ordered the bad conduct discharge to be executed.
5. Accordingly, the applicant was discharged with a bad conduct discharge on
1 February 2008 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial. He had served a total of 4 years, 4 months, and 6 days of active creditable service with 241 days of lost time due to confinement.
6. In support of his claim, the applicant provided three character reference letters from two school officials and a friend. They attest that the applicant is intelligent, capable, dedicated, personable, caring, and responsible. One individual indicates that the applicant has shown great determination in turning his life around and that he has not gotten into any trouble since his release.
7. 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 special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
8. 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 members 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.
9. 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 Soldiers separation specifically allows such characterization.
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. Good post service conduct alone is normally not a basis for upgrading a discharge.
2. The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.
3. 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.
4. Since the applicant's record of service included one general court-martial conviction for serious drug offenses and 241 days of lost time, 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 for correction of the records of the individual concerned.
_______ _ 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.
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