IN THE CASE OF:
BOARD DATE: 13 April 2010
DOCKET NUMBER: AR20090012136
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 her bad conduct discharge be upgraded to a general discharge.
2. The applicant states she was given the wrong discharge. She claims when asked if she wanted to stay in the Army she replied yes, but she also indicated she needed help/counseling and because she asked for counseling she was discharged. She points out she was court-martialed and received a bad conduct discharge for being absent without leave (AWOL). She contends she explained her situation to her commander, but because the commander did not believe she needed help, the commander asked the judge for a bad conduct discharge. She goes on to state it was not right for her command to assume that because she understood what was going on around her that she did not need help. The only good thing that came out of this situation was she was able to get help during her confinement. She acknowledges she was wrong for being AWOL and she would like her discharge upgraded so she can return to active duty.
3. The applicant provides no documentary evidence in support of her application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 2 January 2007 and was awarded military occupational specialty 92A1O (automated logistical).
2. On 24 March 2008, the applicant pled guilty to and was convicted by a general court-martial of AWOL from 19 July 2007 to 27 December 2007. She was sentenced to be reduced to E-1, to be confined for 11 months, and to be discharged from the service with a bad conduct discharge. On 25 June 2008, the convening authority approved the sentence.
3. The decision of the U.S. Army Court of Criminal Appeals is not available. However, on 8 January 2009, the convening authority ordered the bad conduct discharge to be executed, indicating the sentence was affirmed.
4. Accordingly, the applicant was discharged with a bad conduct discharge on 27 March 2009 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial. She had served a total of 1 year, 3 months, and 23 days of creditable active service with 340 days of lost time.
5. 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.
6. 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.
7. 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. Applicant contends she was court-martialed and received a bad conduct discharge for being AWOL and asking for counseling. The record shows the applicant pled guilty and was convicted of AWOL.
2. Trial by court-martial was warranted by the gravity of the offense charged. The 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.
3. The applicant's record of service included one general court-martial conviction for AWOL and 340 days of lost time. As a result, her record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general under honorable conditions discharge. There is no evidence the applicant suffered from mental or physical ailments which led to her misconduct.
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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