IN THE CASE OF:
BOARD DATE: 20 April 2010
DOCKET NUMBER: AR20090011711
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 to an honorable discharge.
2. The applicant states he was awarded the Good Conduct Medal and served in support of Operation Iraqi Freedom as a field ordering officer while serving in the rank of specialist, which proves he was not out to get the U.S. Army.
a. He states he had difficulty with his finances while he was married.
b. He states he was not greedy or inconsiderate, and there is no excuse for the single, tragic mistake he made.
3. The applicant provides no additional documentary evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted and entered active duty in the Regular Army (RA) for a period of 3 years on 8 February 2000. He reenlisted for a period of 6 years on
3 June 2002 and served in support of Operation Iraqi Freedom from 17 January to 24 April 2003.
2. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 8 February 2000 and he was discharged on 28 July 2006 with a bad conduct discharge under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3 (Character of Service/Description of Separation), based on court-martial (other). At the time of his discharge he had completed 4 years, 8 months, and 19 days of net active service. Item 29 (Dates of Time Lost During This Period) shows he had time lost from 27 October 2004 through 28 July 2006.
3. The applicant's military personnel records do not contain a copy of his court-marital orders. An Army Board for Correction of Military Records (ABCMR) staff member contacted the applicant in an effort to obtain copies of his court-martial orders; however, the applicant indicated that he does not have copies of the orders.
4. 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.
5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides that a member will be given a:
a. bad conduct discharge [DD Form 259A] pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.
b. an honorable discharge when authorized. It 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.
6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his bad conduct discharge should be upgraded because he satisfactorily served in support of Operation Iraqi Freedom before he made a single, tragic mistake that led to his court-martial and discharge.
2. The applicant did not provide any documentary evidence pertaining to his military service in support of his request for upgrade of his discharge.
3. Absent evidence to the contrary it is concluded that the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged; conviction and discharge were effected in accordance with applicable law and regulations; and the applicant's rights were protected throughout the court-martial process.
4. 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. The applicant's 4 years, 8 months, and 19 days of creditable active duty service from February 2000 until his court-martial in October 2004 was considered. Given his 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.
5. There is a presumption of administrative regularity in the conduct of governmental affairs. This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption. The applicant fails to provide such evidence. As a result, the applicant's discharge is presumed proper and equitable.
6. Based on the foregoing, there is no basis for granting the applicant's requested relief.
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) AR20090011711
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ABCMR Record of Proceedings (cont) AR20090011711
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