IN THE CASE OF:	

		BOARD DATE:         25 August 2009
	
		DOCKET NUMBER:  AR20090004539 


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, that his bad conduct discharge be upgraded to honorable.

2.  The applicant states that he is requesting an upgrade of his discharge so he can receive medical benefits from the Department of Veterans Affairs (VA).  He contends that he was injured while on active duty and the VA will not treat him because of his court-martial for larceny.

3.  The applicant provides no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  On 23 July 2002, the applicant enlisted in the California Army National Guard (CAARNG).  He completed his initial training, including the Basic Airborne Course, and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).

2.  On 22 February 2003, the applicant was ordered to active duty as a member of the Army National Guard.

3.  On 17 December 2003, the applicant was found guilty by a special court-martial of attempted larceny and larceny.  He was sentenced to a bad conduct discharge, reduction to pay grade E-1, and confinement for 150 days.  On 
22 April 2004, the sentence was approved.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.  The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  The sentence having been affirmed pursuant to Article 71c, the sentence to a bad conduct discharge was ordered executed.  

4.  Accordingly, the applicant was discharged on 22 January 2007, under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 3, and he received a bad conduct characterization of service.

5.  On 14 March 2008, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB found no mitigating factors that would warrant clemency.  There was a full consideration of all faithful and honorable service as well as the incidents of misconduct.  The applicant was charged with seven attempted larcenies and seven larcenies during the period from 1 April 2003 through 17 June 2003.  At a special court-martial he was found guilty.  The ADRB determined that the applicant's discharge was both proper and equitable and found no cause for clemency.  The ADRB denied the applicant's request for upgrade of his discharge. 

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

7.  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.

8.  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.  The applicant contends that his bad conduct discharge should be upgraded to honorable so that he may receive VA medical benefits.

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 final discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  Based on the applicant's misconduct, his service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general, under honorable conditions discharge.

4.  There is no available evidence showing that the applicant was injured while on active duty.  Furthermore, there is no evidence showing that any such injury might have been a mitigating factor.  

5.  The applicant's desire to obtain veteran's medical benefits is not justification for an upgrade of an individual's discharge.

6.  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 the aforementioned requirement.

7.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

8.  In view of the above, there is no basis for granting the applicant's requested 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 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)                                         AR20090004436



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ABCMR Record of Proceedings (cont)                                         AR20090004539



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