IN THE CASE OF:
BOARD DATE: 25 March 2010
DOCKET NUMBER: AR20090016075
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 discharge from a bad conduct discharge to general, under honorable conditions discharge, and change of his narrative reason for his discharge from "court-martial, other" to "misconduct."
2. The applicant states, in two separate applications, that before incarceration he had no adverse actions. He understands he was court-martialed, but would prefer not to have "court-martial, other" on his DD Form 214 (Certificate of Release or Discharge from Active Duty).
3. The applicant adds he had a spermatocele cyst removed from a testicle and all of his snowboarding gear was stolen while he was in confinement. His military gear was not turned in and he should not be financially responsible for it.
4. The applicant provides a personal statement, medical documents, and an Anger and Stress Management Certificate of Completion from the Naval Consolidated Brig, Miramar, San Diego, CA.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 18 July 2006.
2. The applicant was convicted by a General Court-Martial on 9 July 2007 and the approved sentence consisted of reduction to Private (PV1)/E-1), forfeiture of all pay and allowances, confinement for 36 months, and a bad conduct discharge.
3. The applicant's DD Form 214 shows he was issued a bad conduct discharge on 8 May 2009 in accordance with Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3.
Item 26 (Separation Code) shows the entry "JJD" and item 28 (Narrative Reason for Separation) shows the entry "Court-Martial, Other."
4. Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for the preparation and issuance of separation documents, including the DD Form 214. It states that the information in item 28 will be entered as shown in Army Regulation 635-5-1 (Special Program Designator (SPD) Codes) based on the regulatory or other authority.
5. Army Regulation 635-5-1 states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data. The "JJD" SPD code is the correct code for Soldiers involuntarily separating under Army Regulation
635-200, chapter 3, by reason of court-martial (other).
6. Army Regulation 635-200 provides guidance on characterization of service. Paragraph 3-7b states 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.
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 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant wants his bad conduct discharge upgraded to a general, under honorable conditions discharge and the narrative reason for separation changed from "court-martial, other" to simply "misconduct."
2. 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.
3. Based on the regulatory authority for the applicants separation, Army Regulation 635-5-1 specifies that the SPD code be "JJD" will be entered on the DD Form 214 and the narrative reason for discharge will be entered as court-martial, other. By regulation, the applicant's DD Form 214 is correct. Therefore, there is no error or injustice.
4. The applicant's statement concerning his health is not relevant to his request. Also, his statement concerning his snowboarding and military equipment is neither confirmed nor relevant to his request.
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) AR20090016075
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ABCMR Record of Proceedings (cont) AR20090016075
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