IN THE CASE OF:	  

		BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090005487 


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, in effect, that he wants his discharge upgraded to allow him to receive benefits after serving 7 years with two deployments.  He feels he was pressured into pleading guilty at his court-martial with the fear of having to face years in prison.  He also contends that the findings at his preliminary hearing did not warrant a court-martial; however, his zealous commander pushed his court-martial through.   

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

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 September 1999 and trained as an infantryman.  

2.  On 1 March 2007, the applicant was convicted by a general court-martial of failing to obey a lawful order, assault (three specifications), being drunk and disorderly, and communicating a threat to injure.  He was sentenced to be confined for 8 months, to be reduced to E-1, and to be discharged with a bad conduct discharge.  The convening authority approved the sentence on 28 June 2007.  The automatic forfeiture of all pay and allowances was deferred effective 15 March 2007 and terminated on 28 June 2007.  The forfeiture of all pay and allowances required by Article 58b, UCMJ, was waived effective 28 June 2007 for a period of 6 months.

3.  On 28 November 2007, the applicant's general court-martial order was corrected by the U.S. Army Court of Criminal Appeals.  Two specifications of assault were corrected to show he was guilty of assault consummated by battery upon a child under 16 years of age. 

4.  On 28 November 2007, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 6 May 2008, the U.S. Court of Appeal for the Armed Forces denied the applicant's petition for a grant of review.   

5.  On 5 June 2008, the convening authority ordered the bad conduct discharge to be executed.

6.  The applicant was discharged with a bad conduct discharge on 2 April 2009 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 8 years, 11 months, and 22 days of total active service with 197 days of lost time due to confinement.   

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 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.  

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 Soldier’s 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, U.S. 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.  A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs benefits.
 
2.  The applicant’s contentions that he was pressured into pleading guilty at his court-martial and that his preliminary hearing findings did not warrant a court-martial relate to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his general court-martial and appellate proceedings.

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.  The applicant's record of service included one general court-martial conviction and 197 days of lost time.  As a result, 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 upgrading his 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)                                         AR20090005487



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005487



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1