IN THE CASE OF:
BOARD DATE: 01 April 2010
DOCKET NUMBER: AR20090013830
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 upgrade of his bad conduct discharge (BCD) to a general, under honorable conditions discharge.
2. The applicant states, in effect, he was depressed while he was in the military and placed under suicide watch numerous times. He also states that he saw a psychologist before he got into the trouble that resulted in his discharge; therefore, he feels that he was seriously wronged.
3. The applicant provides no additional documents in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicants record shows that he enlisted in the Regular Army on 20 July 2000.
2. On 29 September 2003, the applicant pled guilty at a general court-martial (GCM) to one specification of being absent without leave (AWOL) from 25 May to 4 June 2003, disrespect to a superior commissioned officer, disrespect to a noncommissioned officer (NCO), disobeying a lawful order from an NCO, two specifications of willfully destroying government property, and unlawful entry. He was found guilty of the aforementioned offenses.
3. The court sentenced the applicant to a forfeiture of $750.00 pay per month for 6 months, confinement for 116 days, and a bad conduct discharge (BCD). The convening authority approved the sentence and after appellate review, directed the execution of the discharge.
4. The applicant's DD Form 214(Certificate of Release or Discharge from Active Duty) shows he was discharged on 7 February 2007, under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, by reason of court-martial, with a reentry eligibility (RE) code of 4. This form further lists the applicant's character of service as bad conduct.
5. 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 change a discharge due to matters which should have been raised in the appellate process, 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.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 (Character of Service/Description of Separation) provides that a discharge certificate or a DD Form 214 will be given to each Soldier of the Army upon discharge from the Service or release from AD. Paragraph 3-11 (Bad conduct discharge) 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. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.
7. 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.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence in the applicant's record nor did he submit any evidence that shows he suffered from depression, informed his chain-of-command that he suffered from depression and required medical treatment, or was seen by a psychiatrist while he was in the military.
2. The evidence of record does show the applicant was convicted by a GCM and he received a BCD. Trial by a GCM was warranted by the serious nature of the offenses for which the applicant was charged and convicted. The sentence is commensurate with the misconduct for which the applicant was convicted.
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) AR20090013830
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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