IN THE CASE OF:
BOARD DATE: 26 August 2009
DOCKET NUMBER: AR20090005441
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 (BCD) be upgraded.
2. The applicant did not submit any issues regarding his request for an upgrade.
3. The applicant provides no additional documents in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 22 June 2000. His highest grade attained was specialist, E-4.
2. On 3 February 2004, the applicant was found guilty by a special court-martial of two specifications of being absent without leave (AWOL) from 18 October 2002 to 21 October 2002 and 20 December 2002 to 13 August 2003, making a false statement, and wrongfully receiving stolen property, of a value of $200.00. He was sentenced to a reduction to E-1, a forfeiture of $795.00 pay per month for 5 months, confinement for 5 months, and a BCD. On 23 February 2004, the sentence was approved. On 9 February 2006, the United States Army Court of Military Review affirmed the findings of guilty and the sentence. The BCD was ordered to be executed on 9 February 2006.
3. On 15 September 2006, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial. He completed 5 years, 2 months, and 24 days of creditable active service with 355 days of lost time due AWOL and confinement.
4. On 12 December 2007, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.
5. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Paragraph 3-11 of this regulation states that a Soldier will be given a BCD 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.
6. 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.
7. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.
8. 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.
DISCUSSION AND CONCLUSIONS:
1. It is noted that the 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.
2. The applicants record of service shows he was convicted by a special
court-martial for two specifications of AWOL (236 days), making a false statement, and wrongfully receiving stolen property of a value of $200.00. Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct and lost time also renders his service unsatisfactory. Therefore, he is not entitled to either 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.
ABCMR Record of Proceedings (cont) AR20090005441
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