BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090003991 


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 an upgrade of his bad conduct discharge (BCD) to an honorable discharge.

2.  The applicant states, in effect, that he learned from his mistake and believes he is completely rehabilitated.  He states that he and his family have suffered the inconveniences resulting from his BCD and in his opinion he has paid his debt to society.  He claims that given the status of the economy, he is in fear that if he is laid off from his current job he will have little opportunity to secure a job that will support his family.  He states that he completed one honorable tour, served in Iraq, earned the respect of his peers and superiors, and earned many awards.  He finally claims that he is a better person now and an upgrade of his BCD would help his family.

3.  The applicant provides no evidentiary documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he initially enlisted in the Regular Army and entered active duty on 9 January 1998.  He was trained in, awarded, and served in military occupational specialty 42L (Administrative Specialist).

2.  On 15 December 2003, the applicant reenlisted for 3 years in the rank of specialist, which is the highest rank he held while serving on active duty, and continued to serve on active duty.

3.  The applicant's record shows that he served in Southwest Asia from 15 September 2002 through 14 September 2003.  It also shows that during his active duty tenure he earned the following awards:  Joint Service Commendation Medal, Army Commendation Medal (2nd Award), Army Achievement Medal (2nd Award), Army Good Conduct Medal (2nd Award), National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, Army Service Ribbon, and Overseas Service Ribbon.

4.  On 23 March 2005, a general court-martial (GCM) found the applicant guilty pursuant to his plea of violating Article 134 of the Uniform Code of Military Justice (UCMJ) by wrongfully stealing certain mail from the Suwon Post Office.  The resulting sentence from the military judge was a reduction to private(PV1)/E-1, confinement for 7 months, and a BCD.

5.  In Headquarters, 19th Theater Support Command, GCM Order Number 9, dated 20 May 2005, the GCM convening authority approved the sentence and directed with the exception of the part of the sentence extending to the BCD that the sentence be executed.

6.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, GCM Order Number 124, dated 21 April 2006, directed that Article 71(c) of the UCMJ having been complied with, the BCD portion of the sentence be executed.  On 11 October 2006, the applicant was discharged accordingly.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge on 11 October 2006 shows he completed a total of 8 years, 3 months, and 13 days of creditable active military service and that he accrued 170  days of time lost due to confinement.  It also shows that the applicant was discharged in the rank of PV1 under the provisions of chapter 3, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), by reason of court-martial and that he received a BCD.

8.  Army Regulation 635-200 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.


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 contention that his BCD should be upgraded because he is now completely rehabilitated and has paid his debt to society was carefully considered.  However, this claim is not sufficiently mitigating to grant the requested relief.

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.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  Although he now regrets the actions that led to his BCD, he does not deny committing the offense for which he was convicted.  Given the gravity of the offense that resulted in his GCM conviction and BCD, there is an insufficient evidentiary basis to support clemency by upgrading his discharge to either fully honorable or general under honorable conditions 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 evidence that would satisfy this requirement.

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.

ABCMR Record of Proceedings (cont)                                         AR20090003991



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ABCMR Record of Proceedings (cont)                                         AR20090003991



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