BOARD DATE: 15 April 2010
DOCKET NUMBER: AR20090013016
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 an upgrade of his bad conduct discharge (BCD).
2. The applicant states he is requesting an upgrade of his BCD to obtain eligibility to use his education benefits. He also claims he would like to serve again to prove he did not deserve the BCD.
3. The applicant provides no documentary evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows he enlisted in the Regular Army and entered active duty on 20 April 1999. He was trained in and awarded military occupational specialty (MOS) 11F (Fire Support Specialist) and specialist/E-4 is the highest rank he attained while serving on active duty.
2. The applicant's record shows he earned the Korea Defense Service Medal, Army Service Ribbon, and Overseas Service Ribbon during his active duty tenure. His record documents no acts of valor or significant achievement.
3. On 3 October 2001, a general court-martial (GCM) found the applicant guilty of violating Articles 80 and 134 of the Uniform Code of Military Justice (UCMJ) as follows:
a. Article 80 (2 specifications) - assault in which grievous bodily harm is intentionally inflicted on or about 29 April 2001, and attempting to commit assault on another Soldier by shooting at him with a dangerous weapon on or about 29 April 2001; and ;
b. Article 34 (2 specifications) - wrongfully endeavor to impede an investigation by concealing a firearm on or about 29 April 2001, and wrongfully and unlawfully making a false statement under lawful oath on or about 29 April 2001.
4. The resulting GCM sentence was reduction to private/E-1, forfeiture of all pay and allowances, confinement for five years, and a BCD. The GCM convening authority approved the sentence in Headquarters, 4th Infantry Division (Mechanized), Fort Hood, Texas, GCM Order Number 24, dated 1 October 2002.
5. On 21 September 2007, Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, GCM Order Number 249 directed, the sentence having been finally affirmed and Article 71(c) of the UCMJ having been complied with, that the BCD portion of the sentence be duly executed.
6. On 29 January 2008, the applicant was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), by reason of court-martial and received a BCD. The DD Form 214 he was issued at the time shows he completed a total of 3 years, 9 months, and 23 days of creditable active military service and accrued 1,808 days of time lost due to confinement.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides the policies and procedures for separating members with a dishonorable or BCD. It stipulates a Soldier will 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. 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 BCD should be upgraded in order for him to qualify for educational benefits and so he can serve again has been carefully considered. However, these factors are not sufficiently mitigating to support granting the requested relief.
2. 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.
3. The evidence reveals no error or injustice related to the applicant's
court-martial and/or his subsequent discharge, and his record documents no acts of valor or significant achievement. Therefore, given the gravity of the offenses resulting from his court-martial conviction and BCD, his overall record of service is not sufficiently compelling to support clemency and/or an upgrade of his discharge.
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.
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