BOARD DATE:	  March 2, 2010

		DOCKET NUMBER:  AR20090015998 


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 to a general discharge under honorable conditions.  He also requests the issuance of a separate DD Form 214 (Certificate of Release or Discharge from Active Duty) for each period of enlistment/service.

2.  The applicant states that he served one period of enlistment with no problems.  He was confined for a period of 45 days with no court-martial, nonjudicial punishment, or an investigation.  He felt the whole procedure was an injustice but his mind was in a bad place at the time.  He used alcohol for comfort and did stupid things that he later admitted in court.  He will always have remorse for his stupidity but at the time, his anger took over after his 45 days of confinement under terrible conditions.  He is not a bad person and does not feel he should have to pay for his stupidity for the rest of his life.  He served his country with honor before his problems and hopes that his first period of enlistment will be considered when reviewing his request for an upgrade. 

3.  The applicant provides a copy of his Honorable Discharge Certificate, dated 17 October 2005; a copy of his Oath of Reenlistment, dated 18 October 2005; a copy of a receipt, dated (filed) 17 December 2008; and a copy of the Office of the Inspector General (IG) letter, dated 27 March 2007, in support of his request. 





CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) for a period of 3 years on 7 August 2003.  He completed the training requirements and he was awarded military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer).  He also executed a reenlistment in the RA on 18 October 2005.  The highest rank/grade he attained during his period of military service was specialist/E-4.  He was assigned to the 6th Squadron,
6th Cavalry, Germany.

2.  The applicant's records also show he was awarded the Global War on Terrorism Service Medal.  

3.  On 23 May 2006, at a general court-martial the applicant pled to the following charges:

	a.  He pled not guilty to one specification of committing an indecent assault upon a female Soldier by putting his hands inside her pants while she was sleeping on or about 5 November 2005; one specification of wrongfully communicating a threat to the female Soldier to harm her if she ever told anyone that she saw him in the room of a sergeant on or about 5 November 2005; one specification of unlawfully entering the barracks room of a sergeant on or about 5 November 2005; one specification of disobeying a lawful command from a superior commissioned officer on or about 4 February 2006; and one specification of attempting to commit an indecent assault upon a female Soldier by entering her shower while she was bathing and unclothed on or about 9 July 2005. 

	b.  He pled guilty to one specification of wrongfully leaving the scene of an accident without making his identity known as the driver of the vehicle at the time of the accident in which said vehicle was involved on or about 4 February 2006; one specification of being drunk and disorderly by demonstrating conduct that was of a nature to bring discredit upon the armed forces on or about 9 July 2005; one specification of being found drunk while on duty as the squadron's charge of quarters on or about 5 November 2005; one specification of physically controlling a utility vehicle while drunk and causing said vehicle to strike a building and injure a Soldier on or about 4 February 2006; one specification of wrongfully appropriating a utility vehicle on or about 4 February 2006; one specification of a lesser included offense of violating a lawful order on or about 4 February 2006; and one specification of causing, through neglect, damage to a Government utility vehicle by operating and driving the vehicle into a building on or about
4 February 2006.

4.  The court found him guilty in accordance with his pleas (except for a finding of guilty for indecent assault on or about 5 November 2005 and a finding of not guilty for disobeying a lawful command from a superior commissioned officer on or about 4 February 2006).  The court sentenced him to a reduction to private (PVT)/E-1, a forfeiture of $849.00 pay for 20 months, 20 months in confinement, and a bad conduct discharge.  The sentence was adjudged on 23 May 2006 and he was transferred to the Fort Sill, OK, to serve his sentence.

5.  On 22 September 2006, the convening authority approved so much of the sentence as provided for reduction to PVT/E-1, a forfeiture of $849.00 pay for 
13 months, 13 months in confinement, and a bad conduct discharge.  Additionally, the convening authority deferred the automatic forfeiture of pay and allowances effective 6 June 2006 until 22 September 2006 and except for that portion of the sentence extending to a bad conduct discharge, ordered the sentence executed.

6.  On an unknown date, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

7.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 176, dated 21 August 2008, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

8.  The applicant was discharged from the Army on 14 November 2008.  The 
DD Form 214 he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial with a bad conduct discharge.  He completed 4 years, 7 months, and 11 days of creditable military service.  He also had 242 days of lost time due to being in confinement, and 618 days in an excess leave status.

9.  The applicant submitted a copy of a letter from the Office of the IG, Fort Lewis, WA, wherein he raised several issues pertaining to what he described as intolerable conditions during his incarceration.  This letter also shows that an assistant IG responded to his concerns item by item.

10.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (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.

11.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  Paragraph 3-7a, provides that an honorable discharge 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  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.

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that item 12 shows the Record of Service.  Extreme care is used when completing this item since post-service benefits, final pay, retirement credit, and so forth are based on this information.  Item 12a (Date Entered Active Duty This Period) shows the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued; item 12b (Separation Date This Period) shows the Soldier’s transition date; and item 12c (Net Active Service This Period) shows the amount of service this period, computed by subtracting item 12a from 12b.  Additionally, item 18 (Remarks) is used for Headquarters, Department of the Army mandatory entries when a separate block is not available or as a continuation of selected items.  For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, item 18 shows the entry "IMMEDIATE REENLISTMENTS THIS PERIOD” (specify dates). However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable,” enter “Continuous Honorable Active Service From” (first day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistments as prescribed above.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to a general discharge under honorable conditions.

2.  The evidence of record shows the applicant’s trial by general court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  The ABCMR 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

3.  After a review of his entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.  Therefore, he is not entitled to either an honorable or a general discharge.  

4.  With respect to the IG letter he submitted, it appears that an assistant IG addressed and/or responded to the issues that the applicant raised concerning his confinement living conditions.  Nevertheless, neither the living conditions within a confinement facility nor a change to such conditions are within the purview of this Board.  The ABCMR is not an investigative body.  If the applicant wishes to pursue this matter, he is advised to address these issues with the chain of command of the relevant confinement facility.  

5.  With respect to the applicant's request for the issuance of a separate 
DD Form 214 for his first period of service, the practice of issuing a separate 
DD Form 214 for each period of enlistment was discontinued in the early 1970s.  The applicant's DD Form 214 appropriately shows he completed his first full term of service by listing his prior enlistment.  

6.  The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The applicant’s DD Form 214 correctly reflects his record of service and contains no errors.  Therefore, 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)                                         AR20090015998



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ABCMR Record of Proceedings (cont)                                         AR20090015998



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