BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090009329 


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 to a general, under honorable conditions discharge (GD)

2.  The applicant states that he is requesting an upgrade of his discharge to allow for reenlistment in the military.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army (RA) and entered active duty on 16 March 2004.  He was trained in and awarded military occupational specialty (MOS) 19D (Cavalry Scout).  His record documents no acts of valor or significant achievement.

2.  On 26 March 2007, a General Court-Martial (GCM) found the applicant guilty of two specifications of violating Article 123a of the Uniform Code of Military Justice for, on or about 22 November 2005 until on or about 15 December 2005, with intent to defraud and for the procurement of lawful currency and things of value, wrongfully and unlawfully make and utter to the Fort Polk Army and Air Force Exchange Service (AAFES) certain checks upon the Armed Forces Bank then knowing that he did not or would not have sufficient funds in or credit with such bank for the payment of the said checks in full upon its presentation.  The resultant sentence from the Military Judge was a reduction to private/E-1 (PV1), confinement for 18 months, and a BCD.  
3.  The GCM convening authority, in Headquarters, Joint Readiness Training Center and Fort Polk, Fort Polk, Louisiana, GCM Order Number 12, dated 6 June 2007, approved only so much of the sentence as provided for 16 months confinement, reduction to E-1, and a BCD.  Furthermore, the convening authority waived automatic forfeiture of all pay and allowances required by Article 58b, UCMJ, effective 9 April 2007, for a period of six months with direction that funds be paid to the mother of the accused.

4.  On 18 July 2007, the U.S. Army Court of Criminal Appeals ordered that to reflect the true proceedings at the trial that GCM Order Number 12 be corrected by deleting line twenty of Specification 1 of the charge pertaining to check 0156, in its entirety.  However, thereafter, consideration of the entire record held that the findings of guilty and sentence approved by the convening authority in the applicant's case were correct in law and fact.  Accordingly, it affirmed the guilty findings and the sentence.  

5.  On 1 November 2007, GCM Order Number 238, issued by Headquarters, U.S. Army Armor Center and Fort, Knox, Fort Knox, Kentucky, directed, that, Article 71(c) of the UCMJ having been complied with and the sentence having been affirmed, the sentence be executed.  

6.  On 8 February 2008, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued upon his separation shows he was separated under the provisions of chapter 3, Army Regulation 635-200, as a result of a court-martial and that he received a BCD.  This document also confirms he completed a total of 3 years and 10 days of creditable active military service.  

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides 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.  Paragraph 3-7b provides that a GD 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 (HD).  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, 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.  The applicant's request that his BCD be upgraded to a GD so that he may reenlist in the military was carefully considered.  However, there is insufficient evidence to support granting the requested relief.

2.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  His record reveals no acts of valor or significant achievement.  His overall record of service is not sufficiently meritorious to support an upgrade of his BCD given the gravity of the offenses that resulted in his court-martial conviction.  Therefore, there is an insufficient evidentiary basis to support clemency in this case.  

3.  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.

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)                                         AR20090009329



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ABCMR Record of Proceedings (cont)                                         AR20090009329



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