BOARD DATE: February 18, 2010
DOCKET NUMBER: AR20090011278
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, an upgrade of his bad conduct discharge (BCD).
2. The applicant states, in effect, he would like his BCD upgraded so that he can go to school and help his family. He states he served his country with honor for 15 years.
3. The applicant provides no documentary evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows that he initially enlisted in the Regular Army and entered active duty on 14 July 1989, and was trained in and awarded military occupational specialty (MOS) 91G (Food Service Operations). His record shows he was promoted to sergeant on 1 November 1996, and that this is the highest rank he attained while serving on active duty.
2. The applicant's record shows that during his active duty tenure, he earned the Army Commendation Medal (3rd Award), Army Achievement Medal (3rd Award), Army Good Conduct Medal (5th Award), National Defense Service Medal (2nd Award), Global War on Terrorism Expeditionary Medal, Korean Defense Service Medal, Noncommissioned Officer Professional Development Ribbon,
Army Service Ribbon, and Overseas Service Ribbon (3rd Award).
3. The applicant's record shows that on 5 October 1998, while serving in Japan, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully driving without a valid operator's permit, making a false official statement, and wrongfully soliciting another individual to make a false official statement. His punishment for these offenses was a forfeiture of $378.00 (suspended) and 14 days of extra duty and restriction.
4. On 9 June 2005, a General Court Martial (GCM) found the applicant guilty of the following articles of the UCMJ as indicated: Article 92 (three specifications) by wrongfully engaging in a relationship with a junior Soldier that was exploitive and coercive in nature, and which involved the improper use of rank for personal gain on separate occasions during June 2004, between August 2004 and February 2005, and between October 2004 and January 2005; and Article 93 (two specifications) by maltreating a junior female Soldier, a person subject to his orders, between August 2004 and February 2005 and between October 2004 and January 2005. The resultant approved sentence was confinement for
2 years, reduction to private/E-1, and a BCD.
5. On 23 August 2007, Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, GCM Order Number 177, shows the applicant's sentence having been finally affirmed and Article 71(c) of the UCMJ having been complied with, directed the BCD portion of the sentence to be duly executed. On
27 June 2008, the applicant was discharged accordingly.
6. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued on 27 June 2008, shows he was discharged under the provisions of chapter 3, Army Regulation 635-200, by reason of court-martial and with a BCD. It also shows he completed a total of 17 years, 5 months and 17 days of creditable active military service and he had accrued 178 days of time lost due to being in confinement.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides for separating members with a dishonorable or bad conduct discharge. It stipulates, in pertinent part, that a Soldier would be given 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.
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.
9. 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 contention that his BCD should be upgraded to allow him to go to school and to help himself and his family was carefully considered. However, discharges are not upgraded solely for the purpose of authorizing benefits. By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.
2. In this case, the evidence reveals no error or injustice related to the applicants court-martial and/or his subsequent discharge. The applicant's BCD was appropriate given the gravity of the offenses for which he was convicted. As a result, there is an insufficient evidentiary basis to support clemency in this case.
3. 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.
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