BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090010350 


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, upgrade of his bad conduct discharge (BCD) to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he committed the crimes that resulted in his discharge when he was 19 years old and on his own for the first time.  He claims he acted out of character and he did things he is not proud of and truly regrets.  He states his conviction included 3 years of confinement, from which he was paroled and released after 11 months of trouble free confinement.  He states he is now 22 years of age, he is married with two children, and they are his main focus in life.  However, things have not been easy for him and he has found it difficult to get a job and he truly misses the military.  He claims that each day he wakes up and wishes his youthful decisions had been wiser.  He is requesting an upgrade of his discharge in the hope this will make getting a job easier so he can provide for his family.  He claims he still tells people to this day that the Army is a good place to be and that it can help build character and make you a more responsible individual.  He asks consideration of his request for the sake of him and his family.

3.  The applicant provides a third party Probation Officer statement in support of his application.





CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army (RA) and he entered active duty on 1 February 2006.  He was trained in and awarded military occupational specialty (MOS) 88M (Motor Transport Operator).

2.  The applicant's record shows he was advanced to private (PV2)/E-2 on 
1 August 2006, and that this is the highest rank/grade he attained while serving on active duty.  It also shows that during his active duty tenure he earned the National Defense Service Medal and the Army Service Ribbon.  His record documents no acts of valor or significant achievement.

3.  On 4 May 2007, a general court-martial (GCM) found the applicant guilty, pursuant to his pleas, of violating Articles 81, 86, 107, and 112a of the Uniform Code of Military Justice (UCMJ) as follows:  Article 81, by conspiring to distribute cocaine and methylenedioxmethamphetamine between on or about 15 July and on or about 16 August 2006; Article 86 (two charges/specifications), by being absent without leave (AWOL) from on or about 24 through on about 25 October 2006 and from on or about 28 February through on or about 2 March 2007; Article 112a (4 specifications), by wrongfully distributing cocaine on divers occasions between on or about 15 July and on or about 16 August 2006, wrongfully distributing methylenedioxmethamphetamine between on or about
15 July and on or about 16 August 2006, wrongfully using cocaine on divers occasions between on or about 15 July and on or about 9 November 2006, and wrongfully using methylenedioxmethamphetamine on divers occasions between on or about 15 July and on or about 16 August 2006; and Article 107 (two specifications/charges), by wrongfully making a false official statement on or about 25 October 2006 and on or about 28 February 2007.  

4.  The court-martial sentence imposed by the military judge was confinement for 4 years and a BCD.  In Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, GCM Order Number 8, dated 28 September 2007, the GCM convening authority approved only so much of the sentence that provided for confinement for 22 months and a BCD.

5.  On 13 November 2007, the United States Army Court of Criminal Appeals, on consideration of the entire record, including consideration of the issues personally specified by the appellant, held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the findings of guilty and the sentence were affirmed.

6.  On 27 March 2008, the United States Court of Appeals for the Armed Forces, on consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, denied the petition.

7.  On 17 April 2008, Headquarters, United States Army Armor Center, Fort Knox, KY, GCM Order Number 77 confirmed the applicant's sentence had been finally affirmed and directed, Article 71(c) of the UCMJ having been complied with, that the BCD portion of the sentence be duly executed.  On 6 August 2008, the applicant was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued on the date of his discharge shows he completed a total of 1 year, 2 months, and 2 days of creditable active military service and he accrued 487 days of time lost due to AWOL and confinement.

9.  The applicant provides a supporting statement from his Probation Officer who states that the applicant regrets his mistakes which appear to have been the result of his substance abuse/addiction.  He indicates the applicant is a highly motivated individual who is devoted to his family.  He states that it is his belief if the applicant were allowed to return to military service, he would be a good Soldier.

10.  Army Regulation 635-200 (Personnel Separation - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge (DD) or a BCD.  It stipulates, in pertinent part, that a Soldier will be given a DD or 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 sentence was ordered duly executed.

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 crimes were the result of youthful mistakes and that his discharge should be upgraded so that he can improve his employment opportunities to help him and his family and the supporting statement he provided from his Probation Officer were carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The applicant's record reveals no acts of valor or significant achievement and although his goal to improve the quality of his life and that of his family is noteworthy, his overall record of service is not sufficiently meritorious to support an upgrade of his BCD given the number and gravity of the offenses that resulted in his GCM 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)                                         AR20090010350



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ABCMR Record of Proceedings (cont)                                         AR20090010350



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